Sh. Rajan vs Hardayal Municipal Public Library on 7 October, 2010

[Cites 18, Cited by 0]

Delhi District Court

Sh. Rajan vs Hardayal Municipal Public Library on 7 October, 2010

                                       1

 IN THE COURT OF SH. DAYA  PRAKASH: PRESIDING OFFICER LABOUR
          COURT NO. XVI: KARKARDOOMA COURTS : DELHI


LCA  NO.  69/10


Sh. Rajan
S/o Sh. Mool Chand
C/o Room No. 95, Barracks No. 1/10
Jam Nagar House
Shahjahan Road
New Delhi.
R/o House No.17/37, Kalyanpuri main Road,
Delhi
Gokulpuri, Delhi95.                                ...... Workman



VERSUS



Hardayal Municipal Public Library
Through its Hony Secretary
Gandhi Ground, 
Chandni Chowk
Delhi110006.                                        ...... Management



                                                   Date of Institution  :  05.03.10
                                                   Judgment reserved :  01.09.10
                                                   Date of decision     :  07.10.10



                                   O R D E R

1. As per application, the workman was initially employed on daily wages w.e.f 06.12.06 and his services were regularized w.e.f. 03.03.07 in the pay scale ID No. 69/10 1/18 2 of Rs. 2550552660603200 as Peon. It is further stated that the status of the management of Hardayal Municipal Public Library is like an NGO and appointed the workman after taking proper interview as prescribed by the said management. It is further stated that in the absence of any recruitment rules his services have to be regulated as per Labour Laws. Accordingly, his services were regularized as per Model Standing Order in respect of Industrial establishment not being Industrial establishment in Coal Mines. It is further stated that the activities of the management is covered under Section 2(j) as Industry and the workman is being a unskilled nature of job and also covered as per definition u/s 2(s) as a workman. It is further stated that the work of the management on which the workman has been performing his duty is covered under the Payment of Wages Act 1936 so the establishment is also covered under the Modal Standing Order under the Industrial Employment (Standing Orders) Act 1947 and accordingly the workman is entitled to the permanent status after completion of 90 days of services under the management and accordingly the services of the workman were regularized as there was no recruitment rules for the employment of the workman. It is further stated that even as per rule2(h) of Model Standing Orders, the workman who were employed on the basis of contract of employment for a fixed period as referred hereinabove are also entitled to all statutory benefits available to a permanent workman but in the case of the workman the workman has been employed for indefinite period and entitled the benefits for a permanent workman as the duty, duty hours and other conditions are same being as unskilled workman performing the duty of a permanent nature of job. It is further stated that the management even retained the earned wages w.e.f. 01.04.07 as the workman ID No. 69/10 2/18 3 performed his duty from the date of his initial employment and upto 25.09.09 but the management arbitrarily retained the earned wages of the workman w.e.f.

th 01.04.07 to 25.09.09 as the workman is entitled the revised pay scale as per 6 Pay Commission w.e.f 01.04.07 in the pay band plus grade pay Rs. 520020200 + Rs.1800 and his services were terminated w.e.f. 26.09.09 and against that ID is pending before this court. It is further stated that the denial of the earned wages have to be termed as forced labour and the same is not permissible under the provisions of Payment of Wages Act 1926. It is prayed to realize the amount of Rs. 3,06,168/ alongwith bank interest from the management as the earned wages being the existing right of the workman.

2. Notice was claim was issued to management. AR for management appeared in pursuance of notice.

3. During the course of proceedings, an application was filed by AR for management under section 11 of ID Act wherein it is stated that the present application filed by the applicant under section 33 C (2) of ID Act is liable to be dismissed on following grounds :

(a) that the management library is not an industry. The objects and functions of creation of the management do not constitute it an industry. The management library does not carry on any activity which can be termed as business, manufacturing or trade. The object of the management library is to create awareness about education by making provisions for books/periodicals etc. to the public at large. The management is engaged in public welfare ID No. 69/10 3/18 4 activities and as such engaged in sovereign functions. As such, the management library is not an industry and the provisions of the Industrial Dispute Act are not applicable to the management and its employees and as such no Industrial Dispute came into existence. Further the claimant is not a workman under the provisions of Industrial Dispute Act.

(b) that the present application has been filed by the applicant stating therein that the applicant was initially engaged on daily wages w.e.f 06.12.06. It has been further stated that services of the applicant was regularized w.e.f 03.03.07 on the post of Peon and further that the services of the applicant were terminated w.e.f. 25.09.09.

The applicant has sought recovery of wages for the period w.e.f 1.04.07 to 25.09.09 alleging therein that the applicant has not been paid wages for the period w.e.f 1.04.07 to 25.09.09.

The facts of the case in concise are :

The Hony. Secretary of the management Sh. Ashok Jain made illegal appointment of 788 persons during the period w.e.f 1.04.06 to 11.06.07, including the claimant. The said appointments including that of claimant were illegal as the appointments were made without any sanction and existing post, without advertisement or calling names from Employment Exchange and without following proper recruitment procedure etc. There were no vacancy and no post, against which the said appointments including that of claimant were made. It is further stated that the said appointment including that of claimant, made during the period w.e.f 1.04.06 to 11.06.07 were illegal and void abinitio, therefore, ID No. 69/10 4/18 5 management issued show cause notices to the said appointees including that of claimant, to terminate their services. It is further stated that the said appointees filed Writ Petition against the show cause notice before Hon'ble High Court. The said writ petitions were disposed of by the Hon'ble High Court wherein the library undertook to set up an impartial inquiry tribunal to go into the question relating to the appointments of the employees including that of claimant. It is further stated that in view of order passed by Hon'ble High Court of Delhi, the management constituted an impartial inquiry tribunal, presiding over by Mr. G. P Thereja Ld. ADJ (Retd.). A report was submitted holding therein that the appointments made were illegal. It is further stated that the inquiry report was accepted by the management library and the management library took conscious decision of annulment of the services of the employees appointed during the period w.e.f 1.04.06 to 11.06.07 including that of claimant. However, the said order of annulment had been made effective only after expiry of two weeks in view of order dated 6.07.09 passed by Hon'ble High court of Delhi. It has been further held by the Hon'ble High Court of Delhi that the said appointments including that of claimant were illegal and have rightly been annulled by the management vide order dated 11.09.09. It has been further held that the said employees including the claimant are not entitled for any arrears of salary or grant of subsistence allowance.

4. Reply to the application of management under section 11 of ID Act filed wherein it is stated that instead of filing a reply to the application of the applicant, the management has chosen to file a frivolous and baseless application for rejection of claim just to delay the disposal of the case. ID No. 69/10 5/18

6 In reply on merits it is denied that the application of the applicant under section 33 C (2) of ID Act is liable to be dismissed. It is submitted that the present dispute between the applicant and the management is well covered by the Industrial Dispute Act and the applicant is very much a workman within the meaning of section 2(s) of ID Act. It is further submitted in reply that the committee headed by Sh. G.P.Thereja, Ld. ADJ, Delhi was not holding the power of Labour Court or Industrial Tribunal, hence the report of the said committee cannot supplant the power of Labour Court/Industrial Tribunal created under the Industrial Dispute Act 1947 or any other court even civil or criminal. It is further submitted that the Industrial Tribunal/Labour court are special court for adjudication for settlement of industrial dispute and cited "Life Insurance Corporation of India Vs. D.J.Bahadur & Ors. (1981) 1 SCR 1083. AR for workman also cited Maharashtra State Road Transport Corporation & Anr. Vs. Casteribe Rajya P. Karamchari Sanghatana 2009 LAB IC 4309. In reply, the case of D.P.Maheshwari Vs. Delhi Administration was also cited. It is further stated that the workman performed his duty and the management retained the earned wages and this court has power and jurisdiction to compute the earned wages amount U/s 33C(2) of I.D. Act.

Remaining facts of the case as alleged by the management are hereby denied.

5. On the basis of application of the management, a following preliminary issue was framed on 23.07.10 :

ID No. 69/10 6/18

7

(i) Whether the petition filed by the the petitioner is maintainable?

6. Arguments on preliminary issue heard. It is stated by AR for workman that present petition filed by workman is maintainable and instead of framing preliminary issue, this court should decide all the issues including whether the petitioner is entitled to receive the money benefits including salary w.e.f April, 2007 till date. AR for workman cited The Life Insurance Corporation of India Vs. D. J Bahadur & ors., (1981) ISCR 1083 and the judgment of Hon'ble High Court of Delhi in writ petition (C) 3950/2006.

Hence, it is urged by AR for workman that let all the issues be framed and after recording evidence order be passed thereon. It is further stated by AR for workman that in case of Labour Dispute only the labour court is competent to pass the order. Any court other than the labour court is not competent to pass any order or award. Hence, it is urged that the order of Hon'ble High Court of Delhi since were not under Industrial Dispute Act, be ignored. It is stated by AR for workman that on facts and laws initially only the Labour Court or Industrial Tribunal, if competent to pass order under Industrial Dispute Act, as under

section 25 (j) Labour Court and Industrial Tribunal has overriding effect on all other Acts.

On the other hand, AR for management stated that the management is not an industry. The objects and functions of creations of management does not ID No. 69/10 7/18 8 constitute it an industry. The main object of the management is to impart awareness about education by the means of books to the public at large. He further stated that claimant is not a workman under the Industrial Dispute Act. He further stated that Hony. Secretary of the management made illegal appointment of approx. 788 persons during the period w.e.f 1.04.06 to 11.06.07, including the claimant. The said appointments including that of claimant were illegal as the appointments were made without any sanction and existing post, without advertisement or calling names from Employment Exchange, without following proper recruitment procedure etc. He further stated that the said appointment including that of claimant, made during the period w.e.f 1.04.06 to 11.06.07 were illegal and void, abinitio, therefore, management issued show cause notices to the said appointees including that of claimant, to terminate their services.

AR for management cited the order of Gauri Jha & Ors. Vs. Hardayal Municipal Public Library & ors. in Writ Petition (C) No. 11906/2009 and C. M No. 12039/2009 as well as in LPA No. 549/09 and the order of Hon'ble Supreme Court of India.

AR for management further cited State of U.P and anr. Vs. Brijpal Singh,(2005) 5 SCC 58 wherein it is held that :

"the appropriate forum where question of back wages could be decided is only in a proceeding before a forum to whom a reference under section 10 of the Act is made. Therefore, the Labour Court had no jurisdiction to adjudicate the claim made by the respondent herein under section 33 C (2) of the ID Act in an ID No. 69/10 8/18 9 undetermined claim and until such adjudication is made by the appropriate forum, the respondent workman cannot ask the Labour court in an application under section 33 C (2) of the ID Act to disregard his dismissal as wrongful and on the basis to compute his wages."

It is further stated by AR for management that once a subject matter has been decided up to Hon'ble Supreme Court of India, this court cannot denovo appreciate the facts and then decide. It is further stated that once a superior court has passed an order, this court is bound to follow that order and cannot start a trial and then give findings in award/order.

7. I have seen the file, documents and in my considered opinion the present Industrial Dispute filed by the claimant is not maintainable on following grounds:

1. The undisputed fact remains that one Hony. Secretary of the management Sh. Ashok Jain has made appointment of 700800 persons during the period 1.04.06 to 11.06.07. The management subsequently discovered the malpractice; wants of posts; absence of budgetary provision and irregular procedure in appointments. Accordingly management issued show cause notice to all the persons employed during this period including claimant to terminate their services. Against the show cause notice the appointees filed writ petition no. 6178/07, 6595/07, 6797/07, 7180/07, 7181/07, 9042/07, 8691/07, 1863/08 and 6178/08 etc. The said writ petitions were disposed of by the Hon'ble ID No. 69/10 9/18 10 High Court of Delhi vide its order dated 2.04.08 as the management undertook to set up an Impartial Inquiry Tribunal to go into the question relating to the appointments of the employees, including that of claimant who were appointed between 1.04.06 to 11.06.07. It was further undertook by the management that management will take action after considering the report of the said inquiry tribunal. In pursuance to this, the management constituted an Impartial Inquiry Tribunal, presided over by Mr. G. P Thereja, Retd. ADJ, Delhi. The inquiry tribunal submitted its report and accordingly the reference was answered which is reproduced in Para 14 of judgment of Hon'ble High Court of Delhi delivered on 25.09.09 which is as follows:

Para 14 of Impartial Inquiry Tribunal In view of the above observations and also the depositions that have been recorded and the observations that have been made with respect to the branches I answer the questions posted to me while making the reference of inquiry as follows: A. To support the appointment of 799 employees between 1.04.2006 and 11.06.2007 the posts were not there.

B. There was no budgetary provision/sanction and/ or adequate finance to support the appointments to the extent of appointment made.

C. There was no proper advertisement of post. The applications were not called from the Employment Exchange in accordance with law relating to appointments.

D. The advertisements by Suchha on the notice Boards of the ID No. 69/10 10/18 11 Library or its branches was not adequate and sufficient advertisements to comply with the requirement of law. E. The initial recruitment on daily wages and subsequent alleged regularization was against Article 14 and 16 of the Constitution of India. Such appointments were not in accordance with fair procedure and requirement of law. F. There was no proper and fair scrutiny of the applications before selections were made for appointments.

G. Extraneous considerations were there in the matter of making the appointments.

H. The mass appointments in the Library between 1.4.2006 and 11.6.2007 are illegal and void in entirely.

I. The mass appointments are liable to be annulled from their inception.

Having answered the question as referred a question arises in the mind that the branches, which had opened during the period in question although funds were not there for mass appointments that have been made illegally and without jurisdiction, have functioned and a grant of Rupees thirty lacs been provided by the MCD towards the opening of new branches and branches are functioning under the name of the Library even today and Library has taken the benefit of the services of the staff actually required for such branches in serving the public, should the Library not part with wages which it should have been paid had the appointments been made according to the constitution of the Library and as per requirement of the particular branch and qualified persons were appointed. There is no doubt some person amongst those who have been illegally appointed do possess the qualifications required. The principle of quantum merit certainly directs that the Library must part with such an amount of wages. The library should estimate and calculate the actual requirement of the staff in a particular branch and the salary ought to have been paid if the necessary and qualified staff had been there. Those who have actually worked ID No. 69/10 11/18 12 although my inspection incognito indicates that only few worked and most of them were actually not present must be compensated. There is no doubt surplus staff on the roll was more than what the requirement was in fact. The Library should distribute equally to all such employees who according to the finding of an independent committee constituted from amongst the staff actually and sincerely attended. If the wages so saved after deducting the wages paid to regular staff is less than a month's salary for such employees, the Library and the MCD should be benevolent to add extra amount to such sum so that sincere employee do get one month's salary for cessation of employment in addition to what is suggested further hereinafter.

Further while parting with this report I consider it appropriate to recommended although for the vacancies which are estimated for such branches which were opened during the period in question, the fresh appointments are to be made in accordance with Article 14 and 16 of the Constitution yet 20% and 25% of such vacancies may be reserved for such employees provided they possess the qualifications as are required for the staff or a Library of the Standard of Hardayal Library or the qualifications as may be prescribed for the posts in the open recruitment. Such an approach would be in accordance with the principle of fair play in action. The Library will lay down reasonable criteria so that merit and professionally qualified candidates who have acquired experience of the Library and/ or those who have acquired professional qualifications during the intervening period get opportunity to work and experience acquired in the Library does not go waste at least of the candidates who have merit and the professional qualifications.

The management accepted the inquiry report submitted by the Impartial Inquiry Tribunal in toto and the management library took conscious decision of annulment of the services of the employees appointed during the period w.e.f 1.04.06 to 11.06.07, including that of claimant. The order of annulment was made effective only after expiry of two weeks in view of order of Hon'ble High Court of Delhi dated 6.07.09 in Writ Petition no. 9786/09 and passed the order ID No. 69/10 12/18 13 dated 11.09.09. Against this order Writ Petition bearing no. 11906/09 titled as Gauri Jha & ors. Vs. Hardayal Municipal Public Library & ors. and writ petition no. 11907 titled as Deepak Sharma & Ors. Vs. Hardayal Municipal Public Library & ors. challenging the order dated 11.09.09. Vide judgment dated 25.09.09, the Hon'ble High Court of Delhi dismissed the said writ petition holding that the impugned order of the management dated 11.09.09 cannot be termed as arbitrary or irrational because the inquiry report cannot be faulted with. The inquiry report is self speaking one and does not violate any of the principle of natural justice. The Hon'ble High Court of Delhi came to the conclusion after following Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165 and Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146.

In Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165, it was held that :

"the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors. Further......

the proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."

In Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146, it was held that :

"the illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa."

ID No. 69/10 13/18

14 Accordingly once the Hon'ble High Court has found an oder of the management to be correct, this court cannot again start inquiry about the legality and illegality of that very order. Anyhow this court is bound by the decision of Hon'ble High Court of Delhi on similar facts and laws.

2. Ld. Impartial Inquiry Tribunal made one of the conclusion that there were no post. If posts are not there, no appointment can be made. In Ashwani Kumar & ors. Vs. State of Bihar & ors., 1996 Supp. (10) SCR 120, it was held by their lordship of Supreme Court that :

"the confirmation of regularization can be done only in case of available vacancy which is also sanctioned."

In present case, there was no available vacancy nor any sanctioned post. Added to this was that there was no budget for payment or expenses with respect to these posts. The Ld. Impartial Inquiry Tribunal concluded that there was no proper advertisement of posts, no proper and fair scrutiny of candidates.

Hon'ble High Court of Delhi cited R.N Nanjundappa Vs. T.Thimmiah, 1972 AIR (SC) 1767 : 1972 (1) SCC 409 : 1972 SLR 94 : 1972 LIC 618 : 1972 (1) LLJ 565 : 1972 (2) SCR 799 wherein it was held by the lordship of Supreme Court that :

"if the appointment itself is in infraction of the rules or if it is violation of the provisions of the ID No. 69/10 14/18 15 Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Accordingly, where procedure is not followed, regularization cannot be made." (Paras 26,27,28) In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :

"A regular appointment to a post under the State or Union cannot be made without issuing advertisement."

The Hon'ble High Court of Delhi has also cited when the recruitment process is tainted then the annulment of the entire selection process is only option as held by Hon'ble Supreme Court of India Inderpreet Singh Kahlon and ors. Vs. State of Punjab and ors. (2006) 11 SCC 356; Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165 and Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146.

3. Against the order of management dated 11.09.09 either claimant could have approached the labour court or could have moved in Writ Petition. Some employees choose Writ Petitions and in the Writ Petition, Hon'ble High Court of Delhi in judgment dated 25.09.09 as cited above found the whole process of the selection illegal. Once two forums are ID No. 69/10 15/18 16 available to a person to invoke two different original jurisdiction and the affected person choose one forum and after having adverse decision he cannot invoke the original jurisdiction of another forum. Hence, once a candidate resorted to writ jurisdiction which was disposed on merit then again he cannot file claim/petition under the Industrial Dispute Act.

4. The principle of res judicata operates when the writ petition under Article 32 or 226 is dismissed or decided on merits after the parties have had an opportunity of raising their contentions thereon, and thereafter a regular suit is sought to be brought on the same matter in controversy between the same parties. Res judicata will operate even if new grounds not raised in the writ petition are raised in the suit. (Gulab chand Vs. State of Gujarat, AIR 1965 SC 1153 and Union of India Vs. Nanak Singh, AIR 1968 SC 1370). Once the affected person has resorted to constitutional provisions and after getting adverse effect on merit, they cannot move under the Act as constitutional provisions is always superior to an Act.

5. Against the order of Ld. Single Judge, some of the Petitioners filed LPA no. 549/09 titled as "Deepak Sharma & ors. Vs. Hardayal Municipal Public Libarary" and Ld. Division Bench observed :

"It is inconceivable how the appointment to a post in a public authority, like the Respondent library, can be made without there being any rules or regulations and without any advertisement being issued inviting applications. The manner of appointment of these 788 persons, including the Appellants,cannot be countenanced in law. ID No. 69/10 16/18

17 We find that there was sufficient material before the Inquiry Officer to enable him to come to the above conclusions which cannot be said to be perverse. The comments of all the affected persons on the said report were invited and considered before the impugned order was passed."

6. The Ld. Division Bench further stated :

"the appellants opted to file a writ petition challenging the impugned order. They invited the finding on merits by the learned Single Judge. They cannot now be permitted to reagitate the question of validity of the termination of their services again before another forum."

7. In the arguments AR for workman states that the claimant is entitled to the wages for the period they worked is untenable since the appointment of the claimant is annulled from its inception. Meaning thereby that the workman is not treated on the roll of the management from inception and since the workman is not treated on the roll is not entitled to any wages. When the Hon'ble High Court of Delhi has found the whole selection of process illegal and accepted the recommendation of tribunal, then the appointment being annulled from its inception which is accepted by the management vide order dated 11.09.09.

8. The question of payment of arrears was claimed in that writ petition and was dealt by the Hon'ble High court of Delhi in judgment dated 25.09.09 in following words :

"the prayer of the petitioners for the arrears of salary or for grant of subsistence allowance cannot be accede to for the reason that the appointments in question have been rightly annulled by the impugned order."

ID No. 69/10 17/18

18 Similarly, Hon'ble Supreme Court has observed in Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165, it was held that :

"proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."

In view of above, petition of the petitioner deserves to be dismissed as not maintainable.

8. File be consigned to the record room after necessary compliance by Ahlmad.

Announced in the Open Court                           (DAYA  PRAKASH)
    th
on 7   October, 2010                             Additional District & Session Judge
                                                    Presiding Officer labour Court XVI
                                                       Karkardooma  Courts  : Delhi.
 




ID No.  69/10                                                                              18/18
                                              19

4. Reply to the application of management under section 11 of ID Act filed wherein it is stated that instead of filing a reply to the application of the applicant, the management has chosen to file a frivolous and baseless application for rejection of claim just to delay the disposal of the case.

In reply on merits, it is denied that the application of the applicant under section 33 C (2) of ID Act is liable to be dismissed. It is submitted that the present dispute between the applicant and the management is well covered by the Industrial Dispute Act and the applicant is very much a workman within the meaning of section 2(s) of ID Act.

Remaining facts of the case as alleged by the management are hereby denied.

5. On the basis of application of the management, a following preliminary issue was framed on 07.07.10 :

(i) Whether the petition filed by the the petitioner is maintainable?

7. Arguments on preliminary issue heard. It is stated by AR for workman that present petition filed by workman is maintainable and instead of framing preliminary issue, this court should decide all the issues including whether the petitioner is entitled to receive the money benefits including salary w.e.f April, 2007 till date. AR for workman cited The Life Insurance Corporation of India Vs. D. J Bahadur & ors., ID No. 69/10 19/18 20 (1981) ISCR 1083 and the judgment of Hon'ble High Court of Delhi in writ petition (C) 3950/2006.

Hence, it is urged by AR for workman that let all the issues be framed and after recording evidence an award be passed thereon. It is further stated by AR for workman that in case of Labour Dispute only the labour court is competent to pass the award. Any court other than the labour court is not competent to pass any order or award. Hence, it is urged that the order of Hon'ble High Court of Delhi since were not under Industrial Dispute Act, be ignored. It is stated by AR for workman that on facts and laws initially only the Labour Court or Industrial Tribunal, if competent to pass order under Industrial Dispute Act, as under

section 25 (j) Labour Court and Industrial Tribunal has overriding effect on all other Acts.

On the other hand, AR for management stated that the management is not an industry. The objects and functions of creations of management does not constitute it an industry. The main object of the management is to impart awareness about education by the means of books to the public at large. He further stated that claimant is not a workman under the Industrial Dispute Act. He further stated that Hony. Secretary of the management made illegal appointment of approx. 788 persons during the period w.e.f 1.04.06 to 11.06.07, including the claimant. The said appointments including that of claimant were illegal as the appointments were made without any sanction and existing post, without advertisement or calling names from Employment Exchange, without following proper recruitment procedure etc. He further stated that the said appointment including that of claimant, made during the period w.e.f 1.04.06 to ID No. 69/10 20/18 21 11.06.07 were illegal and void, abinitio, therefore, management issued show cause notices to the said appointees including that of claimant, to terminate their services.

AR for management further cited State of U.P and anr. Vs. Brijpal Singh,(2005) 5 SCC 58 wherein it is held that :

"the appropriate forum where question of back wages could be decided is only in a proceeding before a forum to whom a reference under section 10 of the Act is made. Therefore, the Labour Court had no jurisdiction to adjudicate the claim made by the respondent herein under section 33 C (2) of the ID Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent workman cannot ask the Labour court in an application under section 33 C (2) of the ID Act to disregard his dismissal as wrongful and on the basis to compute his wages."

It is further stated by AR for management that once a subject matter has been decided up to Hon'ble Supreme Court of India, this court cannot denovo appreciate the facts and then decide. It is further stated the once a superior court has passed an order, this court is bound to follow that order and cannot start a trial and then give findings in award.

ID No. 69/10 21/18

7. I have seen the file, documents and in my considered opinion the present Industrial Dispute filed by the claimant is not maintainable on following grounds:

1. The undisputed fact remains that one Hony. Secretary of the management Sh. Ashok Jain has made appointment of 700800 persons during the period 1.04.06 to 11.06.07. The management subsequently discovered the malpractice; wants of posts; absence of budgetary provision and irregular procedure in appointments. Accordingly management issued show cause notice to all the persons employed during this period including claimant to terminate their services. Against the show cause notice the appointees filed writ petition no. 6178/07, 6595/07, 6797/07, 7180/07, 7181/07, 9042/07, 8691/07, 1863/08 and 6178/08 etc. The said writ petitions were disposed of by the Hon'ble High Court of Delhi vide its order dated 2.04.08 as the management undertook to set up an impartial inquiry tribunal to go into the question relating to the appointments of the employees, including that of claimant who were appointed between 1.04.06 to 11.06.07. It was further undertook by the management that management will take action after considering the report of the said inquiry tribunal. In pursuance to this, the management constituted an impartial inquiry tribunal, presided over by Mr. G. P Thereja, Retd. ADJ, Delhi. The inquiry tribunal submitted its report and accordingly the reference was answered which is reproduced in Para 14 of judgment of Hon'ble High Court of Delhi delivered on 25.09.09 which is as follows:

ID No. 69/10 22/18

23 Para 14 of Impartial Inquiry Tribunal In view of the above observations and also the depositions that have been recorded and the observations that have been made with respect to the branches I answer the questions posted to me while making the reference of inquiry as follows: A. To support the appointment of 799 employees between 1.04.2006 and 11.06.2007 the posts were not there.

B. There was no budgetary provision/sanction and/ or adequate finance to support the appointments to the extent of appointment made.

C. There was no proper advertisement of post. The applications were not called from the Employment Exchange in accordance with law relating to appointments.

D. The advertisements by Suchha on the notice Boards of the Library or its branches was not adequate and sufficient advertisements to comply with the requirement of law. E. The initial recruitment on daily wages and subsequent alleged regularization was against Article 14 and 16 of the Constitution of India. Such appointments were not in accordance with fair procedure and requirement of law. F. There was no proper and fair scrutiny of the applications before selections were made for appointments.

G. Extraneous considerations were there in the matter of making the appointments.

H. The mass appointments in the Library between 1.4.2006 and 11.6.2007 are illegal and void in entirely.

ID No. 69/10 23/18

24 I. The mass appointments are liable to be annulled from their inception.

Having answered the question as referred a question arises in the mind that the branches, which had opened during the period in question although funds were not there for mass appointments that have been made illegally and without jurisdiction, have functioned and a grant of Rupees thirty lacs been provided by the MCD towards the opening of new branches and branches are functioning under the name of the Library even today and Library has taken the benefit of the services of the staff actually required for such branches in serving the public, should the Library not part with wages which it should have been paid had the appointments been made according to the constitution of the Library and as per requirement of the particular branch and qualified persons were appointed. There is no doubt some person amongst those who have been illegally appointed do possess the qualifications required. The principle of quantum merit certainly directs that the Library must part with such an amount of wages. The library should estimate and calculate the actual requirement of the staff in a particular branch and the salary ought to have been paid if the necessary and qualified staff had been there. Those who have actually worked although my inspection incognito indicates that only few worked and most of them were actually not present must be compensated. There is no doubt surplus staff on the roll was more than what the requirement was in fact. The Library should distribute equally to all such employees who according to the finding of an independent committee constituted from amongst the staff actually and sincerely attended. If the wages so saved after deducting the wages paid to regular staff is less than a month's salary for such employees, the Library and the MCD should be benevolent to add extra amount to such sum so that sincere employee do get one month's salary for cessation of employment in addition to what is suggested further hereinafter.

Further while parting with this report I consider it appropriate to recommended although for the vacancies which are estimated for such branches which were opened during the period in question, the fresh appointments are to be made in accordance with Article 14 and 16 of the ID No. 69/10 24/18 25 Constitution yet 20% and 25% of such vacancies may be reserved for such employees provided they possess the qualifications as are required for the staff or a Library of the Standard of Hardayal Library or the qualifications as may be prescribed for the posts in the open recruitment. Such an approach would be in accordance with the principle of fair play in action. The Library will lay down reasonable criteria so that merit and professionally qualified candidates who have acquired experience of the Library and/ or those who have acquired professional qualifications during the intervening period get opportunity to work and experience acquired in the Library does not go waste at least of the candidates who have merit and the professional qualifications.

The management accepted the inquiry report submitted by the Impartial Inquiry Tribunal in toto and the management library took conscious decision of annulment of the services of the employees appointed during the period w.e.f 1.04.06 to 11.06.07, including that of claimant. The order of annulment was made effective only after expiry of two weeks in view of order of Hon'ble High Court of Delhi dated 6.07.09 in Writ Petition no. 9786/09 and passed the order dated 11.09.09. Against this order Writ Petition bearing no. 11906/09 titled as Gauri Jha & ors. Vs. Hardayal Municipal Public Library & ors. and writ petition no. 11907 titled as Deepak Sharma & Ors. Vs. Hardayal Municipal Public Library & ors. challenging the order dated 11.09.09. Vide judgment dated 25.09.09, the Hon'ble High Court of Delhi dismissed the said writ petition holding that the impugned order of the management dated 11.09.09 cannot be termed as arbitrary or irrational because the inquiry report cannot be faulted with. The inquiry report is self speaking one and does not violate any of the principle of natural justice. The Hon'ble High Court of Delhi came to the conclusion after following Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC ID No. 69/10 25/18 26 165 and Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146.

In Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165, it was held that :

"the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors. Further......

the proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."

In Union of India & ors. Vs. O. Chakradhar (2002) 3 SCC 146, it was held that :

"the illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out the right from the wrong or vice versa."

Accordingly once the Hon'ble High Court has found an oder of the management to be correct, this court cannot again start inquiry about the legality and illegality of that very order. This court is bound by the judgment of Hon'ble High Court of Delhi.

27 "the confirmation of regularization can be done only in case of available vacancy which is also sanctioned."

In present case, there was no available vacancy nor any sanctioned post. Added to this was that there was no budget for payment or expenses with respect to these posts. The Ld. Impartial Inquiry Tribunal concluded that there was no proper advertisement of posts, no proper and fair scrutiny of candidates.

Hon'ble High Court of Delhi cited R.N Nanjundappa Vs. T.Thimmiah, 1972 AIR (SC) 1767 : 1972 (1) SCC 409 : 1972 SLR 94 : 1972 LIC 618 : 1972 (1) LLJ 565 : 1972 (2) SCR 799 wherein it was held by the lordship of Supreme Court that :

"if the appointment itself is in infraction of the rules or if it is violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Accordingly, where procedure is not followed, regularization cannot be made." (Paras 26,27,28) In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and ors, 2006 (2) SCALE 115, it is held that :

ID No. 69/10 27/18

28 "A regular appointment to a post under the State or Union cannot be made without issuing advertisement."

3. Against the order of management dated 11.09.09 either claimant could have approached the labour court or could have moved in Writ Petition. Some employees choose Writ Petitions and in the Writ Petition, Hon'ble High Court of Delhi in judgment dated 25.09.09 as cited above found the whole process of the selection illegal. Once two forums are available to a person to invoke two different original jurisdiction and the affected person choose one forum and after having adverse decision he cannot invoke the original jurisdiction of another forum. Hence, once a candidate resorted to writ jurisdiction then again he cannot file claim/application under the Industrial Dispute Act.

4. The principle of res judicata operates when the writ petition under Article 32 or 226 is dismissed or decided on merits after the parties have had an opportunity of raising their contentions thereon, and thereafter a regular suit is sought to be brought on the same matter in controversy ID No. 69/10 28/18 29 between the same parties. Res judicata will operate even if new grounds not raised in the writ petition are raised in the suit. (Gulab chand Vs. State of Gujarat, AIR 1965 SC 1153 and Union of India Vs. Nanak Singh, AIR 1968 SC 1370). Once the affected person has resorted to constitutional provisions and after getting adverse effect, they cannot move under the Act as constitutional provisions is always superior to an Act.

5. Against the order of Ld. Single Judge, some of the Petitioners filed LPA no. 549/09 titled as "Deepak Sharma & ors. Vs. Hardayal Municipal Public Libarary" and Ld. Division Bench observed :

"It is inconceivable how the appointment to a post in a public authority, like the Respondent library, can be made without there being any rules or regulations and without any advertisement being issued inviting applications. The manner of appointment of these 788 persons, including the Appellants,cannot be countenanced in law. We find that there was sufficient material before the Inquiry Officer to enable him to come to the above conclusions which cannot be said to be perverse. The comments of all the affected persons on the said report were invited and considered before the impugned order was passed."

6. The Ld. Division Bench further stated :

"the appellants opted to file a writ petition challenging the impugned order. They invited the finding on merits by the learned Single Judge. They cannot now be permitted to reagitate the question of validity of the termination of their services again before another forum."

7. In the arguments AR for workman states that the claimant is entitled ID No. 69/10 29/18 30 to the wages for the period they worked is untenable since the appointment of the claimant is annulled from its inception. Meaning thereby that the workman is not treated on the roll of the management from inception and since the workman is not treated on the roll is not entitled to any wages. When the Hon'ble High Court of Delhi has found the whole selection of process illegal and accepted the recommendation of tribunal, then the appointment being annulled from its inception which is accepted by the management vide order dated 11.09.09.

8. The question of payment of arrears was claimed in that writ petition and was dealt by the Hon'ble High court of Delhi in judgment dated 25.09.09 in following words :

"the prayer of the petitioners for the arrears of salary or for grant of subsistence allowance cannot be accede to for the reason that the appointments in question have been rightly annulled by the impugned order."

Similarly, Hon'ble Supreme Court has observed in Krishan Yadav and anr. Vs. State of Haryana & ors. ( 1994) 4 SCC 165, it was held that :

"proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay."

In view of above, petition of the petitioner deserves to be dismissed as not maintainable.

ID No. 69/10 30/18

8. File be consigned to the record room after necessary compliance by Ahlmad.

Announced in the Open Court                           (DAYA  PRAKASH)
     st
on  1  October,  2010                            Additional District & Session Judge
                                                     Presiding Officer labour Court XVI
                                                        Karkardooma  Courts  : Delhi.
 




ID No.  69/10                                                                              31/18
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ID No.  69/10                         32/18

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Delhi District Court

Sh. Rajan vs Hardayal Municipal Public Library on 7 October, 2010