Rajasthan High Court - Jaipur
Bhanwar Lal And 15 Ors. vs Municipal Board And Ors. on 13 February, 1987
Equivalent citations: 1987(1)WLN690
JUDGMENT Kishore Singh Lodha, J.
1. All these 16 cases involve a common question of law and the facts involved are almost similar, therefore, they are being disposed by a common order. Out of these 16 petitioners, nine petitioners, namely, Prabhu Singh, Mangla Ram, Hanuman Ram, Satya Narain, Ramesh Chandra, Suresh Kumar, Shanker Lal, Hari Singh and Sohan Lal are Naka Guards; two petitioners, namely, Bhanwar Lal and Rajendra Singh are Nakedar, four petitioners, namely, Arun Kumar, Ranjeet Singh, Vimal Kumar and Mohd. Asad are sub-Nakedar and one that is Mohd. Jahid is Gajdar, who were under the employment of the Municipal Board, Nagaur. All of them had been employed before 31-12-1984. However, their services have been terminated by a notice dated 26-8-1986 with effect from 26-9-1986 on the ground that there had been a reduction of the posts and that the initial appointment of each of the petitioners was irregular. All these notices are said to have been offered to the petitioners respectively but each one of them is said to have refused and, therefore, they were dispatched by registered post on 26-8-1986. The learned Counsel for the petitioners has challenged the termination of the services of all these petitioners except the petitioner Mohd. Jahid, Gajdar on the grounds that compliance with Rule 8 of the Rajasthan Municipal (Subordinate and Ministerial Services) Rules, 1963 (here in after referred to as 'the Rules') has not been made, that although the services of the petitioners had been thus terminated, persons similarly situated and even junior to the petitioners in their respective rank had been retained in service and thus an improper discrimination had been made between persons similarly situated and the principles enshrined in Articles 14 and 16 of the Constitution have thus been violated, that the services have been terminated without complying with the provisions of Section 25F(2) of the Industrial Disputes Act and that even after the termination of the services of the petitioners they should have been absorbed according to order No. F. 18 (A) integration DLB 217-494 dated 8-4-1986 issued by the Government of Rajasthan. So as the remaining petitioners are concerned only the last two contentions have been urged.
2. These petitions have been contested by the Municipal Board. In the first place a preliminary objection has been raised that the petitioners have not exhausted their alternative remedy by way of a revision under Section 300 of the Rajasthan Municipalities Act (here in after referred to as 'the Act') which was a efficacious remedy and, therefore, the petitioner cannot invoke the extra ordinary jurisdiction under Article 226 of the Constitution. On merits the learned Counsel for the respondent Municipal Board supported the orders of termination, mainly on the grounds that as a matter of fact, the initial appointment of each of the petitioners was not in accordance with the Rules. They were appointed against the sanctioned strength that is the starling pattern, without budget provisions and appointments were made by the Chairman and not by the Board. It was also urged that continuing these persons so illegally and irregularly appointed, would cast an unnecessary heavy burden on the Municipal Board and it is not expected that the local body should be burdened like this.
3. I have heard the learned Counsel for the parties.
4. So far as the preliminary objection regarding the alternative remedy under Section 300 of the Act goes, the learned Counsel for respondent-Municipal Board has urged that when the statute provides for remedy which is efficacious the party concerned has to exhaust that remedy before approaching this Court under Article 226 of the Constitution and in support of his contention he has placed reliance upon a number of decision of this Court, namely, SB. Civil Writ Petition No. 1856/81-Banshidhar v. Municipal Board, Jodbpur decided on 24-11-80, S.B. Civil Writ Petition No. 2581 Madan Lal v. Municipal Board, Jodhpur S.B Civil Writ Petition No. 964/86. Kamla v. Municipal Board. Jodhpur decided on 19-5-86 S.B. C.W.P. No. 831/86 Jahur Khan v. Munipal Board, Jodhpur decided on 12-5-86 and Girdhari v. Regional Transport Authority Bikaner and Ors. 1970 WLN 721, Champa Lal v. The State of Rajasthan and Ors. . On the other hand, the learned Counsel for the petitioner has urged that the remedy under Section 300 of the Act is not a remedy available to the petitioner as a matter of right but is lies within the discretion of the authorities concerned to entertain the revision or not and in any case as the order of termination is challenged on the ground of violation of Articles 14 and 16 of the Constitution, the existence of an alternative remedy is no bar to the writ petition being entertained. He placed reliance upon V. Vellaswamy v. Inspector General of Police and Anr. , Collector of Customs and Excise, Cochin and Ors. v. M/s A.S. Bam , and B.K. Sharma v. State of Rajasthan and Ors. ILR (1979) 2 Raj. 515 so far as the first contention is concerned and The Government of India and Ors. v. The National Tabocco Co. of India Ltd. and some other authorities also. In rejoinder, Mr. Singhvi urged that even if the ground of violation of Articles 14 and 16 is raised the bar of alternative remedy may still apply as had been held in Sita Ram v. State of Rajasthan and Ors. 1984 RLR 1041. He also placed reliance upon Jagadeesan v. Ayya Nadar Janki Ammal College and Anr. and urged that when the High Court had entertained a writ petition and allowed it, the Hon'ble Supreme Court set aside that order on the ground that an alternative remedy was available to the petitioner and, therefore, the High Court should not have interfered. A careful perusal of all these authorities leads me to the conclusion that ordinarily when an alternative remedy is available to a petitioner he should not be allowed to invoke the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution but it is not an inflexible rule and in cases where the court comes to the conclusion that the order challenged is patently illegal and also violates the principles enshrined in the Constitution, it may entertain a writ petition and may not enquire the petitioner to first exhaust the alternative remedy available to him. In the present case, as I will presently show, there has been a flagrant violation of Section 25F of the Industrial Disputes Act and also discrimination has been made improperly between persons similarly situated, I am of the opinion that the alternative remedy even if available to the petitioner need not be a ground for refusing relief by this Court, specially when the matter had already been admitted after a show cause notice and arguments on merits have also been heard by this Court. Out of these authorities referred to above, the learned Counsel for respondent-Municipal Board laid great stress on Sita Ram v. The State of Rajasthan and Ors. (1) 84 RLR 1041) and urged that although the question of discrimination involving infringement of Articles 14 and 16 was also there and still the learned Judge was of the opinion that on that ground alone, the High Court need not entertain the writ petition. I have carefully gone through the facts of the case and observations made by the learned single Judge. It may at once be stated that in that case the question of implementation of the pay scales was involved and it was alleged that Articles 14 and 16 have also been infringed. In that respect the learned single Judge observed "However, since the question is only of implementation and grievance is against either non-implementation or wrong implementation, the petitioner can in either case challenge the order passed against him, successfully before the Tribunal, if a proper case is made out. The fact that Articles 14 and 16 are violated can further strengthen his case for implementation or wrong implementation. But that alone cannot take out the service matter from the jurisdiction of the Appellate Tribunal." The observation, is to be read in the context of the facts in which they have been made. It would be clear that it was not a case of flagrant dis-regard of a clear provision of law and the matter did require scrutiny. This case is, therefore, clearly distinguishable.
5. This brings me to the merits of the contentions raised by the learned Counsel for the petitioners.
6. I shall first take up the question of non-compliance of Section 25F of the Industrial Disputes Act. In this connection, it may be stated that a common affidavit has been filed Shri Kedarnath, Executive Officer, Municipal Board, Nagaur, on 25-8-1986 covering all these cases. It has been mentioned in para 2 that all the notices, 20 in number, including all the petitioners had been issued on 26-8-1986 and were sought to be served on the persons concerned through process server Anandram. Shri Anandram offered these notices to each of these persons excluding one Harish Acharya, who was out of station and according to the report Anandaram, each of these persons refused to accept the same. He submitted this report on 26-8-1986. There-upon, the Executive Officer Shri Kedarnath himself ordered that the same may be dispatched by registered post. It is further stated that thereupon the establishment clerk made a report that for getting these letters dispatched by registered post, late fee is required to be paid and thereupon Shri Kedar Nath ordered that they may be sent by registered post with the late fee. The photostat copy of the report has been produced as Ex. R 1. In Ex.R.I, first the report made by Anandaram on 26-8-1986 shows that on 26-8-1986, 20 notices terminating the service of the employees had been handed over to him. Out of them 19 employees refused to take notice and one Harish Acharya, LDC was not available at home and on enquiry from his neighbour it was revealed that he had gone out of station. On this report, Shri Kedar Nath directed that since the employees have refused the notice, the same may be sent by registered post on that very day. Under this order of Shri Kedar Nath there is a report of the clerk concerned stating that Anandaram had returned the notices late, therefore, late fee shall have to be paid for sending them by registered post and again, on this Shri Kedarnath wrote the order that the same may be sent by registered post with late fee. A careful perusal of this document as a whole leaves no room for doubt that the notices of all these petitioners had been dispatched if at all in the late hours of the day by paying late fee. These notices, therefore, could not have reached the petitioners on that very day and at the earliest they could have reached the petitioners after a day or two. The acknowledgement receipt of none of the petitioners has been filed and, therefore, there is absolutely nothing to show that these notices had reached the petitioners at such a time that they could get one full month's time after receipt of these notices. It was for the respondent Municipal Board, in these circumstances to establish beyond doubt that the notices had been served upon the petitioners within the time prescribed under Section 25F(a) of the Industrial Disputes Act. They have however, not only failed to do so but have also suppressed the material evidence which was within their possession. Even in the affidavit filed by Shri Kedar Nath it has not been mentioned as to when these notices sent by registered post had been served upon the petitioners.
7. It was sought to be contended by the learned Counsel for the respondent-Municipal Board (hat the refusal of the notice by the petitioners when they were offered to them by Anandaram must be deemed to be sufficient service on the petitioner and therefore, it must be held that the notices had been served upon the petitioners on 26-8-1986 and since their services were terminated with effect from 26-9-1986 one full month's notice must be deemed to have been given to the petitioners. I am unable to accept this contention also. In the first place no rule has been pointed out to me under the Rajasthan Municiplities Act whereby refusal of a notice sent through peon may be deemed to be sufficient service. In the second place, it also clearly appears that the Municipal Board also did not accept this service as proper otherwise there was no necessity for sending the notices by registered post. In the third place, the report of Anandaram dated 26-8-1986 is also most creptic and unreliable, in as much as he has in one sentence stated that the 19 employees refused to accept the notices. He has not recorded this refusal on each of the notices nor has he indicated at what places the notices were offered to each of these 19 petitioners. All these 19 petitioners are posted at different places and have their different designation. All of them could not have been available together. In reply to the affidavit filed by Shri Kedarnath, a further reply has been filed on behalf of the petitioners in which the different places of their posting have been shown. An affidavit of one of the petitioners Shri Sohan Lal has been filed where in also the places of the posting of the different petitioners have been stated on oath giving the distances and showing whether the petitioners were really available to Shri Anandaram on 26-8-1986 and would have refused the notices. In this affidavit, it has be stated that on that day Shri Rajendra Singh, Satyanarain, Vimalkumar and Arun Kumar were not on duly at all. Bhanwar Lal was on night duty and had gone away to his village about 14 kms. away from Nagaur. In these circumstances it does appear that the report of Shri Anandaram that he had offered the notices to all the 19 persons and they refused the same appears to be wrong. It may also be mentioned here that in the earlier reply filed on behalf of the Municipal Board the document Annx. R 1 was not referred to nor was it produced along with that reply and, therefore, the possibility that that document may have been prepared later on also cannot be ruled out.
8. In these circumstances the conclusion is inevitable that the notice under Section 25F(a) to the petitioners did not reach them in such a time as may leave one clear month between the receipt of the notice and the termination of their services. The notices, are therefore, clearly invalid. The compliance with Section 25F(a) is mandatory. Before termination the services of a person, who had put in 240 days service within a calender year preceding the date of his termination, a notice of one month's duration has to be served upon him or he has to be paid salary in lieu of this notice. In these cases, it is not in dispute that all these petitioners had completed the statutory period and as already stated above, the notice served upon them was not in accordance with the provisions of Section 25F(a) of the Industrial Disputes Act. Therefore, the termination of their services cannot be upheld.
9. The learned Counsel for the Municipal Board, of course, tried to justify the termination on the ground that since the petitioners had been appointed illegally initially, in as much as there were no existing posts on which they were appointed, the appointments were beyond the budget provision, orders of appointments had been passed by the Chairman and not by the Board as required under the rules and even the procedure for temporary appointment had not been followed and in these circumstances, setting aside the order of their termination would result into continuing the illegality. According to the learned Counsel this Court should not permit the continuance of the illegality. In my opinion, even if for the sake of argument it is held that the initial appointments of the petitioners were irregular, the proper course for the Board was to terminate their services by properly acting under Section 25F of the Industrial Disputes Act. After all, all these petitioners had been in the service of the Board since along and there was no jurisdiction for the Board not to have complied with Section 25F under which it purports to have acted. Not only this if the irregular appointments had continued for such a long period, it would not lie in the mouth of the Municipal Board now to say that these petitioners should be chucked of even without the compliance of Section 25F.
10. It was also contended that there were no posts on which the petitioners can be accommodated and, therefore, also they should not be ordered to be re-instated but this appears to be a disputed question, in as much as according to the affidavit filed by one of the petitioners Shri Rajendra Singh on 24-11-86, it has been stated that the posts of all these petitioners had been included in the budget passed by the Municipal Board, Nagaur for the year 1986-87. It has further been stated that the Director of Local Bodies when approached by the Chairman, Municipal Board, Naguar, had sanctioned the additional staff in the past years and, therefore, it could have been got sanctioned for the current year. No affidavit has been tiled in rebuttal of this and, therefore, it cannot be said for certain that there are no posts on which the petitioners can be accommodated. In any case it is for the Municipal Board to arrange for their accommodation when the services have been wrongly terminated.
11. I may also mention here that while the services of these petitioners have been terminated on the ground now put forward by the learned Counsel for the respondent Municipal Board, namely, the irregular appointment and want of posts etc, persons similarly situated as the petitioners have been retained in service, e g, in the case of Nakedars, Rajendra Prasad, Shanker Lal, Sahzad Iqbal Salirn, Vithal Dutta, Ram Niwas, Radha Kishan, Jallaludin, Tara Chand and Om Prakash have been retained. Similarly, in the case of Sub-nakedars one Radhey Shyam has been retained, in the case of Naka-gaurds, Abdul Wahid s/o Abdul Rashid, Rajendra Prasad Soni and Abdul Wahid s/o Abdul Karim have been retained, The learned Counsel for the respondent Municipal Board, however, sought to explain that in the cases of Rajendra Prasad, Shankerlal and Sahzad Iqbal have been retained in service on account of the direction of this Court but on a careful consideration of the averment in the writ petition and the reply filed in Rajendra Singh's case it appears that as a matter of fact earlier, their services had also been terminated but the same were challenged before this Court by writ petitions and pending the writ petitions the orders of their termination were withdrawn and thus the writ petitions had been rendered infrauctus. While dismissing those writ petitions as such, on the request of the learned Counsel for the petitioners, the Court, of course, directed that their matters may also be sent up for scrutiny under Rule 8 of the Rules. Thus they have not been retained by any order of this Court as such but the orders of termination bad been withdrawn by the Board itself. When confronted with this position, the learned Counsel the respondent Municipal Board urged that the orders of termination of the services of those persons had to be withdrawn because there was no proper compliance with Section 25F of the Industrial Disputes Act. That being so, the Board was expected to meet out equal treatment to the petitioners also since as already stated above, the provisions of Section 25F(a) have not been complied with in these cases also. The Board cannot withdraw the termination orders of one set of the employees for non-compliance of Section 25F(a) and refuse to withdraw the orders of the others even though in their cases also, Section 25F(a) has not been complied with.
12. From what has been stated above, it clearly appears that an improper and hostile discrimination has been made between the persons similarly situated and, therefore, the second contention of the learned Counsel for the petitioner also deserves to be accepted.
13. When on the aforesaid two grounds the orders of termination of she petitioners will have to be set aside, I need not go into the other two questions raised by the counsel for the petitioners.
14. I therefore, allow these petitioner and set aside the orders of termination of the services of the petitioners dated 26-8-86. They shall be re-instated with all consquential benefits. Looking to all the facts and circumstances of the case, I shall make no order as to costs.