Bombay High Court
Union Of India & Another vs Verendra Ram Ban & Anotehr on 1 August, 2019
Equivalent citations: AIRONLINE 2019 BOM 1357
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, S. M. Modak
1/8 209.wp.5851.04.(Judg)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 5851 OF 2004
1. Union of India, through Secretary, Ministry
of Labour, Shram Sakti Bhawan, Rafi Marg,
New Delhi.
2. Regional Labour Commissioner (Central),
Nagpur & D.D.O. of the C.G.I.T. Cum
Labour Court, Nagpur, C.G.O. Complex,
Block-C, First Floor, Seminary Hills,
Nagpur. ... PETITIONERS
VERSUS
1. Virendra Ram Ban
Aged about 29 Years, working in the post
of Peon in office of the Presiding Officer,
C.G.I.T. Cum Labour Court, Nagpur
Resident at - Plot No. 171, R.P.T.S. Road,
Laxmi Nagar, Nagpur.
2. Hon'ble Central Administrative Tribunal at
Mumbai, Camp at Nagpur.
[Deleted as per Court's order dt/-2.5.2006] ... RESPONDENTS
Mrs. Mugdha R. Chandurkar, Advocate for Petitioners.
None for the Respondent Nos.1 & 2.
CORAM : SUNIL B. SHUKRE AND
S. M. MODAK, JJ.
DATE : AUGUST 1, 2019
::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 :::
2/8 209.wp.5851.04.(Judg)
JUDGMENT - [PER SUNIL B. SHUKRE, J.]
. Heard Mrs. Chandurkar, the learned Counsel for the
Petitioners. Nobody is present for the Respondents.
2. We have perused the impugned order and also the documents placed on record. We have also considered the documents which were placed before us for our perusal and which have been taken on record.
3. The fundamental issue involved in this matter is as to whether or not the appointment of Respondent No.1 made as Peon by order dated 15th March 2000 by the then Presiding Officer, Central Government Industrial Tribunal, Nagpur (for short, 'the CGIT, Nagpur' for the sake of convenience) could be considered as legal and proper and the answer to the question would depend upon what emerges on record in relation to following of the proper procedure by the appointing officer.
4. On going through the impugned order, we find that this aspect of the matter has been brushed aside by the Administrative Tribunal saying that after all, the Respondent No.1 was appointed against a regular vacancy, although temporarily, that the Respondent No.1 was ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 3/8 209.wp.5851.04.(Judg) given regular pay scale and that the Respondent No.1 was also given annual increments as per order dated 21 st March 2003. We must say that there was specific averment made in regard to not following of proper procedure on the part of the Petitioners while justifying the termination of the Respondent No.1 from service. But, it appears to us that the Administrative Tribunal without calling upon the Petitioners to produce on record the relevant documents, such as, the advertisement, if any, or the public notice issued for filling up the post of Peon, has allowed the Respondent's application.
5. It is the contention of the learned Counsel for Petitioners that at the relevant time i.e. in the year 2000, there were two vacancies of peons to be filled up in the office of CGIT, Nagpur and that these vacancies were required to be filled up only through Employment Exchange. Today, along with the pursis, a communication dated 5 th November 1998 of Government of India, Ministry of Labour addressed to the then Regional Labour Commissioner (C), Nagpur has been placed on record so also two more documents such as communication of Ministry of Labour, Government of India dated 10/11th January 2000 addressed to the Employment & Self Employment, Guidance Officer, Nagpur and ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 4/8 209.wp.5851.04.(Judg) Application dated 28th January 2000 made by the Respondent No.1 seeking his appointment as Peon-cum-Cook. These three documents are marked as 'X, Y & Z' respectively for identification.
6. The document 'X' shows that the posts of peon were to be filled up only through the Employment Exchange and that was the reason why vide communication dated 10/11th January 2000 (Document 'Y'), the Regional Labour Commissioner, Nagpur sought the list of the eligible candidates and the second page of this Document 'Y' shows that even the list was forwarded to the Regional Labour Commissioner, Nagpur. While this was all going on, suddenly on 28 th January 2000 the Respondent individually and directly made an application to the Presiding Officer, CGIT, Nagpur making a request for appointing him as a Peon-cum-Cook at the office of CGIT, Nagpur. This application filed by the Respondent No.1 was not forwarded by the Employment Exchange. Name of the Respondent No.1, as rightly submitted by the learned Counsel for the Petitioners, did not figure in the list of eligible candidates sent by the Employment Exchange as per second page of document 'Y'. Yet, the application was accepted by the then Presiding Officer too willingly and ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 5/8 209.wp.5851.04.(Judg) the appointment order was issued to the Respondent No.1 on 15 th March 2000.
7. We find from the above referred documents that they raise a serious question mark over the legality of the appointment of the Respondent No.1, and therefore, we are of the opinion that the Administrative Tribunal, while dealing with the specific averment that no proper procedure was followed while appointing the Respondent No.1 ought not to have ignored the contention on the spacious ground that the Respondent No.1 was appointed as a peon against a sanctioned vacancy, was given the regular pay scale and was also given annual increments. Payment of regular pay as per applicable pay scale, giving of all annual increments and issuing of an order appointing a person against a regular vacancy would all be relevant, only if it is demonstrated by the seaker of relief from the Court i.e. the Respondent No.1 in the present case, that his basic appointment was proper, regular and was made by following the prescribed selection procedure.
8. The Respondent No.1 ought to have himself brought to the notice of the Administrative Tribunal that he was appointed directly by ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 6/8 209.wp.5851.04.(Judg) the then Presiding Officer of the Administrative Tribunal merely on the basis of an application dated 28th January 2000 submitted by him, without there being any advertisement issued for the said purpose. He also should have disclosed to the Administrative Tribunal the other relevant fact relating to his registration or non-registration as an aspirant for the employment with the Employment Exchange, Nagpur. This was all the more necessary on his part in view of a specific pleading raised by the Petitioner No.2 before the Administrative Tribunal that the Respondent No.1 was not appointed through Employment Exchange.
9. If the Respondent No.1 concealed the material facts from the Administrative Tribunal, the Petitioner No.2 also did not lag behind him in non-disclosure of all the relevant facts. If the Respondent No.1 suppressed some of the material facts, the Petitioner No.2 concealed even more. Thus, the Petitioner No.2 as well as Respondents have played rogue with law which has ultimately hampered the process of administration of justice. But, for such conduct of the Petitioner No.2 as well as Respondent No.1, we must not let the public interest suffer and so far as concerned the improper conduct of the Petitioner No.2 in not placing the proper facts ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 7/8 209.wp.5851.04.(Judg) before the Administrative Tribunal, we leave the matter at the door of Petitioner No.1, having sufficient powers to deal with it appropriately.
10. In this view of the matter, we are of the opinion that impugned order cannot be sustained in the eye of law. The Writ Petition is allowed.
11. The impugned order is hereby quashed and set-aside. The matter is remanded back to the Central Administrative Tribunal, Camp at Nagpur for its fresh consideration with liberty to both sides to place on record additional evidence and relevant material, if any.
12. The Central Administrative Tribunal shall decide the matter afresh by considering all the evidence and relevant materials placed before it and after hearing both sides, within a period of eight weeks from the date of appearance of the contesting parties before it.
13. Contesting parties shall appear before the Central Administrative Tribunal, Camp at Nagpur on 19th August 2019.
14. If any of the parties fail to appear before the Central ::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 ::: 8/8 209.wp.5851.04.(Judg) Administrative Tribunal on the appointed date, the Tribunal shall issue notice to the party absent before it.
JUDGE JUDGE
Yadav VG
::: Uploaded on - 07/08/2019 ::: Downloaded on - 16/04/2020 00:32:32 :::