Chattisgarh High Court
Jivendra Prasad Tiwari vs Chairman-Cum-Managing Dir. And Ors on 28 February, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:6975
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 2182 of 2012
Order reserved on : 29/11/2023
Order passed on :28/02/2024
Jivendra Prasad Tiwari, S/o Shri Jagdish Prasad Tiwari, Aged
about 39 years, Village & Post- Sura, District- Riwa (M.P.),
---- Petitioner
Versus
1. Chairman-cum-Managing Director South Eastern Coalfields Ltd.
Seepat Road, Bilaspur (C.G.)
2. Director (Personnel) South Eastern Coalfields Ltd. Seepat Road,
Bilaspur (C.G.)
3. Chief General Manager Hasdeo Area, South Eastern Coalfields
Ltd. P.O. Hasdeo, District- Korea (C.G.)
---- Respondents
For Petitioner : Mr. S.P. Kale, Advocate
For Respondents : Mr. Vinod Deshmukh, Advocate
Hon'ble Smt. Justice Rajani Dubey
CAV Order
1. By way of the instant petition, the petitioner is challenging the action on the part of the respondent authorities whereby the services of the petitioner were not absorbed and regularized on the post of General Mazdoor Category-I.
2. Brief facts of the case as mentioned in the petition, are that the petitioner was selected for the training on the post of Electrician/Fitter/Welder etc. in General Mazdoor Category-I by the SECL. Since the petitioner took training in colliery of the SECL under the Apprentice Act, 1961 (for short "the Act") in year 1995, Neutral Citation 2024:CGHC:6975 2 therefore, he is entitled for employment and absorption in SECL. The petitioner along with other candidates initially filed writ petition i.e. WPS No. 1357/2002 and sought direction from the Court to respondent authorities for consideration of their appointment and absorption on the post of General Mazdoor Category-I. Vide order dated 08.11.2005 passed in WPS No 1357/2020, this Court directed the respondents to consider the case of the petitioner for absorption and regularization on the post of General Mazdoor Category-1 immediately after the ban imposed is lifted and further directed to take steps to get the relaxation from ban for appointment of the petitioner on the above stated posts and also held that the petitioner may be entitled to proficiency certificate, if permissible. Being aggrieved by the said order, the respondent SECL filed a review application i.e. MCC No. 254 of 2005 which was dismissed on 28.04.2006 (Annexure P/6) and thereafter both the orders were challenged before the Hon'ble Supreme Court in SLP (Civil Appeal No. 1714/2007) and vide order dated 29.03.2007 (Annexure P/7), the Hon'ble Supreme Court set aside the order dated 08.11.2005 and 28.04.2006 passed by this Court and directed that as and when the vacancy for regular appointment is advertised and everything being equal, preference may be given to the candidates who have been trained by this establishment. If the incumbents have already successfully completed the training, there is no reason to withhold their proficiency certificate. In view of the said direction issued by the Hon'ble Supreme Court, the management of SECL /Coal India complied with the orders of Hon'ble Supreme Court in the matter of Chairman, Central Coalfields Ltd. Vs. Jeevan Prasad Tiwari & Others passed on 29/03/2007 and the judgment of the Hon'ble Supreme Court in the matter of UP State Road Transport Corporation and Another Vs U.P. Parivahan Nigam Shikshuk Berojgar Sangh 1995 (2) SCC 1 by giving age relaxation in the recruitment. In the advertisement itself, the respondent authorities categorically mentioned that the apprentice/ candidates would be Neutral Citation 2024:CGHC:6975 3 entitled for age relaxation to the extent of the period for which the petitioners/ candidates have undergone apprentice training. Despite the relaxation granted to the candidates/apprentice, they did not qualify for the selection on the post of General Mazdoor Category-I as they were found overage and as such, they did not qualify for the selection on the post of General Mazdoor Category- I as per direction of Hon'ble Supreme Court in the matter of U.P. State Road Transport Corporation and Others case and some of apprentice, who were granted age relaxation to the extent of the period for which the they have undergone apprentice training they were found to be eligible. Thereafter, the petitioner again approached before this Court and filed writ petition i.e. WPS No. 38 of 2009 (Annexure P/8) seeking relief to issue a writ of mandamus commanding the respondent for appointment on the post of General Mazdoor Category-I in the SECL strictly in accordance with directive, observation and guidance as issued by the Hon'ble Supreme Court. The said writ petition vide order dated 09.04.2009 (Annexure P/8) was dismissed by this Court. Against the said order, the petitioner approached before the Division Bench of this Court by filing writ appeal i.e. W.A. No. 139/2009 (Annexure P/9) and the same was disposed of vide order dated 29.04.2010 with a direction to refer the name of the appellants to the national council along with their particulars for giving a chance to appear in the test, so that they can get proficiency certificate after getting successful in the test. The National Council shall consider the same as early as possible preferably within a period of 3 months and further directed to the appellants to approach before the respondent authority for their age relaxation, the same shall be considered sympathetically keeping in view that they had already undergone apprenticeship training but have been deprived of getting proficiency certificates and also the fact that there was imposition of ban on such appointments, due to which, the appellants became over age. Further the appellants shall also be considered for appointment to the post of General Mazdoor Neutral Citation 2024:CGHC:6975 4 Category-I in accordance with law.
3. Thereafter, the petitioner filed the contempt petition which was also dismissed by the Division Bench of this Court vide order dated 28.07.2011 (Annexure P/10). The petitioner worked more than 240 days prior to his oral termination. Respondent authorities did not follow the provision of sections 25 (F) & 25 (G) of Industrial Dispute Act. Respondent authorities gave appointment to some similarly situated employees on the post of General Mazdoor Category. The said appointment is filed as Annexure P/12. Hence, this petition has been filed by the petitioner for the following reliefs:-
10.1 Hon'ble Court may kindly be pleased to call entire record of the case for kind perusal of this Hon'ble Court.
10.2 Hon'ble Court may kindly be pleased to hold that the petitioner is not an apprentice under apprentice Act.
Hon'ble Court may kindly be pleased to hold that petitioner is a temporary employee of Respondent establishment.
10.3 Hon'ble Court may kindly be pleased to direct Respondent authorities to provide employment to the petitioner with consequential benefits as Respondent provided employment to similarly situated employees.
10.4 Hon'ble Court may kindly be pleased to quash the oral termination of petitioner & reinstate him with back wages & all other consequential benefit.
10.5 Any other relief, which Hon'ble Court deems fit and proper may also kindly be granted to the petitioner in the interest of justice.
10.6 Cost of the Petition be also awarded.
4. Learned counsel for the petitioner submits that the petitioner had challenged inaction on the part of respondent authorities whereby authority had not absorbed and regularized the services of petitioner. The petitioner travelled upto Hon'ble Supreme Court but Neutral Citation 2024:CGHC:6975 5 the direction of Hon'ble Court did not benefit him only on the ground of wrong submission made by the respondent authorities before the Hon'ble Court. Respondent authorities filed reply wherein it was mentioned that the petitioner along with other employees has been appointed as a apprentice under the Act. The grounds mentioned in earlier petition are ab-initio illegal and false. Petitioner was working as an employee and he was not appointed under the Act. Respondent authorities wrongly mentioned that the petitioner was appointed as a trainee under the Act. The respondent establishment was not registered under the Apprentice advisory Board. Therefore, the question of appointment under the Act doesn't arise. The petitioner was appointed on the post of electrician vide order dated 09.08.1996 after due selection procedure by wrongly mentioning Trade apprentice in the appointment letter under the Act. The petitioner was working as an employee which does not fall within the ambit of the Act. The respondent authorities wrongly mentioned that the petitioner was appointed as a trainee under the Act. Even otherwise, the respondent authorities have to give equal treatment to the petitioner as the authority gave appointment to the similarly situated employees. The respondent authorities cannot discriminate amongst the employees. The action of authority is against Articles 14 & 16 of the Constitution of India. As the petitioner was appointed on the post of electrician vide order dated 09.08.1996 after due selection procedure, therefore, the termination of the petitioner is ab-initio illegal. The respondent authorities only to deprive the petitioner from benefit of the employee of respondent authorities mentioned him as apprentice. The petitioner did not take the training under the provision of Apprentice Act. Respondent authorities deducted CMPF from the salary of the petitioner and his name has been mentioned in the B- Form which shows that the petitioner was employee of respondent department.
5. The petitioner sought information dated 22.07.2009, 26.11.2009 & Neutral Citation 2024:CGHC:6975 6 27.08.2010 and it is found that the respondent establishment is not registered under the provisions of the Act. Thereafter, the petitioner is fighting to secure his employment in the respondent establishment.
6. Reliance has been placed on the judgment of Hon'ble Supreme Court in the matter of Triveni Engineering & Indust. Ltd. Vs. Jaswant Singh & Anr. reported in 2010 AIR SCW 4944, order passed by Hon'ble High Court of Madhya Pradesh in the case of Babulal Dhanotiya Vs. M.P. Electricity Board & Ors. in M.P. No. 251 of 1987 on 31.08.1989 & this Court's order dated 03.08.2017 passed in W.P.(L) No. 143 of 2012 in the matter of Mohan Jute Mill Limited Vs. Ram Pratap Tiwari.
7. Learned counsel for the respondents strongly opposes the prayer of the petitioner and submits that the identical matters/ issues involved in the instant writ petition and other bunch matters have been decided on merits on 17.11.2017 in WPS No. 1829/2012 and other connected mattes by this Court and dismissed all the writ petitions. The said order has also been confirmed in WA No. 11/2018 (Annexure R/1) by the Division Bench of this Court vide order dated 10.12.2019. In the instant petition, the petitioner is seeking declaration from this Court that he is not a apprentice and also seeking employment which is not maintainable on the principle of estoppels as well as this writ petition is barred by principles of res-judicata. It is well settled principle of law that the apprentice is not a workman and it is not obligatory on the part of the respondents/employer to offer the employment to any apprentice who has completed apprentice training in its establishment. Even otherwise, the apprentice who were completed their training have no legal right to claim any employment/appointment as a matter of right and in absence of any legal rights inheriting in such a person, no writ of mandamus could be issued commanding the employer to give appointment to him. The petitioner has failed to make out any legal and valid ground for seeking interference of this Court and, therefore, he is Neutral Citation 2024:CGHC:6975 7 not entitled for any relief so claimed by him. Therefore, the petition is liable to be dismissed.
8. Reliance has been placed on the judgment of Hon'ble Supreme Court in the matter of Chairman/MD, Mahanadi Coalfields Ltd. and others Vs. Sadashib Behera and others reported in 2005 SCC (L & S) 289, this Court's order dated 17.11.2017 passed in WPS No. 1829 of 2012 {Raj Kumar Patel and others Vs. Coal India Limited and others} and other connected matters & order dated 10.12.2019 passed by Division Bench of this Court in WA No. 11/2018 and other connected matters.
9. Heard counsel for the parties and perused the material available on record.
10.It is not disputed in this case that the petitioner holding the ITI certificate, is ITI trained Electricity faculty and and he was working with respondent No.3 in the year 1996. It is also an admitted position that the petitioner and other applicants filed various petitions before this Court and Hon'ble Apex Court and after consideration, they all are dismissed by this Court as also by Hon'ble Apex Court.
11.Learned counsel for the petitioner submits that the petitioner was not benefited only on the ground of wrong submission made by the respondent authorities. Respondent authorities filed reply wherein it has been mentioned that the petitioner along with other employees was appointed as apprentice under the Apprentice Act, 1961. The ground raised in earlier petition is ab-initio, illegal and false. Now the petitioner has filed this petition on the ground that the petitioner was working as an employee in the respondent department which does not come under the Apprentice Act.
12. Petitioner filed various petitions i.e. WPS No. 1357/2002 order dated 08.11.2005 (Annexure P/5), MCC No. 254/2005 order dated 28.04.2006 (Annexure P/6) which were rejected by this Court. Thereafter, being aggrieved by the said orders, he approached before the Hon'ble Supreme Court and the Hon'ble Supreme Neutral Citation 2024:CGHC:6975 8 Court vide order dated 29.03.2007 passed in Special Leave to Appeal (Civil) No (s). 14056/2006 (Annexure P/7), disposed of the matter. Thereafter, he filed writ petition i.e. WPS No. 38 of 2009 (Annexure P/8) & writ appeal i.e. WA No. 139 of 2009 (Annexure P/9) wherein the claim of the petitioner was rejected. Hon'ble Apex Court vide order dated 29.03.2007 (Annexure P/7) observed and held as under:-
" ................. We set aside the order of the learned Single Judge passed on 8.11.2005 in writ petition and order dated 28.4.2006 passed in review application and direct that as and when vacancy for regular appointment is advertised and everything being equal, preference may be given to the candidate who have been trained by this establishment.
If the incumbents have already successfully completed the training, there is no reason to withhold their proficiency certificate.
13. Some other petitioners filed writ petition i.e. WPS No. 1829/2012 {Raj Kumar Patel & others Vs. Coal India Limited & Ors.} along with other connected matters & vide order dated 17.11.2017, this Court observed in para 21 as under:-
21. From the aforesaid analysis, it is quite apparent that the petitioners' cases for appointment on the post of General Mazdoor Category-I have already been considered by the respondent-SECL with age relaxation when the respondent-
SECL had issued advertisement pursuant to the observation/direction issued by the Supreme Court in Jivendra Prasad Tiwari (supra) and in compliance of the order of Division Bench of this Court in Writ Appeal No.139/2009 and order of Contempt Court dated 23.1.2015, representations of the petitioners have been considered and communicated to them. The respondent-SECL has already sent the names of the petitioners to National Council of Vocational Training for grant of necessary certificates who has declined to award National Proficiency Certificate under Neutral Citation 2024:CGHC:6975 9 NCVT and order of National Council of Training, Govt. of India, Ministry of Labour & Employment, Regional Directorate of Apprenticeship Training, Regional Director of Apprentice Training Udyog Nagar, Kanpur and order passed pursuant to the representations dated 15/16.2.2015 have become final as same have not been challenged by the petitioners in these batch of writ petitions. Thus, these writ petitions are barred by principle of res-judicata as in the earlier round of litigation directions issued by Division Bench of this Court in Writ Appeal No.139/2009 have already been considered and complied with and subsequent orders passed by the respondent-SECL and National Council of Vocational Training have not been challenged by the petitioners. Apart from this, except WPS (S) Nos. 1829/2012 and 2541/2012 all other writ petitions suffer from delay and laches of more than 19-20 years in their filing as the petitioners have pleaded that they have completed their apprenticeship in the year 1996 to 1998 and in these writ petitions, they are seeking age relaxation after 19-20 years on the basis of order passed by this Court in Writ Appeal No.139/2009 and contempt petitions, which cannot be granted.
14.In WA No. 11 of 2018 {Raj Kumar Patel & others Vs. Coal India Limited & Ors.} & other connected matters vide order dated 10.12.2019, the Division Bench of this Court observed and held in para 17 as under:-
17. After hearing both the sides and after going through the contents of the materials on record and particularly, the detailed analysis made by the learned Single Judge, we are of the view that the finding rendered by the learned Single Judge is well supported by the reasoning given therein. It is relevant to note that the Respondent-Company has complied with the directions given by the Court to forward the names of the Petitioners to the NCVT for grant of necessary certificates;
who however has declined to award the 'proficiency certificate' (by passing an order with reference to the representation dated 15/16.02.2015) which virtually is to the Neutral Citation 2024:CGHC:6975 10 effect that since the training undergone by the parties concerned was not the training actually intended for the purpose of giving 'proficiency certificate', it was not liable to be entertained. Fact remains that the said order passed by the NCVT has not been subjected to challenge by any of the Appellants/Petitioners and this has been rightly observed by the learned Single Judge in 'paragraph 21' of the judgment. That apart, it also remains a fact that, but for the Petitioners in Writ Petition (S) No. 1829 of 2012 and 2541 of 2012, all the other Petitioners approached this Court virtually '19-20 years' after completion of their apprenticeship done in 1996-1998; by virtue of which such matters were not liable to be entertained by this Court under any circumstance. The said finding and reasoning is well based on the law declared by the Apex Court in Ravindra Nath Bose v. Union of India, AIR 1970 SC 470, to the effect that the remedy before this Court under Article 226 of the Constitution is not to extend relief to the persons like the writ petitioners, who were taking rest on arm chair, unmindful of their rights and liberties in this regard.
15.It is clear that the petitioner and other similar employees again and again filed various litigations before this Court. Learned counsel for the respondents submits that as per direction of Hon'ble Apex Court, the respondent SECL, gave age relaxation in the recruitment. In the advertisement, it was categorically mentioned that the apprentice/candidates would be entitled for age relaxation to the extent for a period for which the petitioners/candidates have undergone apprentice training and as per respondent, despite the relaxation granted to the candidates/ apprentice, they did not qualify for the selection on the basis of General Mazdoor Category-1.
16.It is clear from order dated 17.11.2017 passed in WPS No. 1829 of 2012 and other connected matters that this bunch of petitions was filed after petitioner's case. This Court categorically observed that the order passed by Hon'ble Apex Court in Jeevan Prasad Tiwari (supra) and passed order which was maintained by Hon'ble Neutral Citation 2024:CGHC:6975 11 Division Bench of this Court.
17. Now the petitioner filed this petition mainly on other ground that he was not appointed as apprentice and was appointed as an employee which does not fall within the ambit of Apprentice Act. Petitioner also filed/annexed various documents in support of his claim to substantiate that he is not working as an apprentice and was employee of SECL. For sake of convenience, the relevant portion of office order dated 21.08.1996 (Annexure P/1) is reproduced herein as under:-
"The following persons have been appointed as ITI Trade appren- tice under apprentice Act, 1961 (ITI) as mentioned against each and posted at Malga Collieing Ramnagar Sub-Area. SECL.
1. Shri Prasant Kuamr Patel S/o Sumeshwar Pd. Patel, appointed as ITI Trade apprentice, Electrician vide letter No. SECL/CGM/(HSD)/Apptt/ 96/2043 dated 7/10.8.96 issued by the Chief General Manager, Hasdeo Area.
2. Shri Jiwendra Prasad Tiwari s/o Shri Jegdish Prasad Tiwari, ap- pointed as ITI Trade apprentice, Electrician vide letter No. SECL/CGM/ (HSD)/Apptt/96/2084 dated 7/14.8.1996 issued by the Chief General Man- ager, Hasdeo Area.
They are hereby allowed to join their duties at Malga Colliery as per their joining report and appointment as ITI apprentice. They will be governed by the conditions as laid down under apprenticeship Act, 1961 and amendment Act, 1973 and 1986 and rule made thereunder.
They are further directed to repart from their duties to the Manager, Malga Colliery with immediate effect after completion all the formalities as per rules."
18.From the aforesaid order, it is evident that the petitioner was appointed as apprentice, and this Court in previous round of litigation considered the case of other petitioners in light of Hon'ble Apex Court's orders and directions. Main objection of the petitioner is that the respondents wrongly mentioned in their return Neutral Citation 2024:CGHC:6975 12 that the petitioner was apprentice but it is clear from the pleadings made in the earlier petition that the petitioner trained as apprentice under the respondents department.
19. Hon'ble Apex Court in the matter of Chairman/MD, Mahanadi Coalfields Ltd. and others Vs. Sadashib Behera and others reported in 2005 SCC (L& S) 289 held in para 7 as under:-
7. These provisions show that apprentice is a person who is undergoing training in pursuance of a contract of apprenticeship duly registered with the Apprenticeship Adviser and the employer who is imparting training is under no obligation to offer any employment to such a person. The legislature has made the aforesaid position clear by making a specific provision in this regard namely Section 22 of the Act and sub-section (1) thereof lays down that it shall not be obligatory on the part of the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training. Sub-section (2) however provides that notwithstanding anything in sub-section (1) where there is a condition in a contract of apprenticeship that an apprentice shall, after successful completion of apprenticeship training, serve the employer, the employer shall, on such completion, be bound to offer suitable employment to the apprentice, and the apprentice shall be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract. Thus the provisions of the Act and the Rules made thereunder show that in absence of any condition in the contract which is entered into between the employer and the apprentice at the time of commencement of his apprenticeship training and which is registered with the Apprenticeship Adviser to the effect that the apprentice shall serve the employer, an apprentice cannot claim any right to get an employment on successful completion of his training. It is not the case of Respondent 1 that in the contract of apprenticeship there was any condition that after completion of training he would serve the employer and in absence of such a condition, the employer namely the appellants are not bound to Neutral Citation 2024:CGHC:6975 13 offer any employment to them. In the absence of any legal right inhering in the writ petitioner (Respondent 1 herein) no writ of mandamus could be issued commanding the appellants to give an appointment to him on the post of welder.
20.Thus, it is clear from all earlier orders that co-ordinate Bench of this Court, considering the grievance of the petitioner and other employees, dismissed the petition of similarly situated persons. In previous round of litigation, the petitioner sought for absorption and regularization on the post of General Mazdoor Category-1 and now petitioner is seeking declaration from this Court that he is not apprentice and is seeking employment. Considering the ground raised in earlier round of litigation and the present one, the instant petition is not maintainable on the principle of estoppels and principle of res-judicata. This Court in several cases has already dealt with this issue. Even in the petitioner's case, this Court and Hon'ble Apex Court considered all grievances of the petitioner and now petitioner again filed this petition on other ground which is almost similar to that of the grounds raised in earlier petitions.
21.In view of aforesaid discussions and considering the facts and circumstances of the case, the petition being without any substance is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey) Judge Ruchi