Rajasthan High Court - Jaipur
Subhash Gupta S/O Late Shri M.K. Gupta vs State Chief Commissioner on 30 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9268/2019
Subhash Gupta S/o Late Shri M.k. Gupta, Aged About 58 Years,
By Caste Agarwal Permanent Resident Of B-67, Barkat Nagar
Extension, Tonk Road, Jaipur.
----Petitioner
Versus
1. State Chief Commissioner, Rajasthan State Bharat Scouts
And Guide, State Headquarter, Near Bajaj Nagar Mod,
J.l.n. Marg, Jaipur (Rajasthan)
2. Principal Secretary, Education (Secondary) Department,
Secretariat, Jaipur (Raj.)
3. Secretary, Education (Secondary) Department
Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. Kunal Rawat For Respondent(s) : Mr. Subodh Shah
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment / Order Reserved on 19/08/2019 Pronounced on 30/08/2019
1. Petitioner has preferred this writ petition seeking following prayers:-
"(i) the Impugned Award of the Learned Labour Court, Number-2, Jaipur dated 31-10-2018 may kindly be quashed and set aside,
(ii) the respondent be directed to reinstate the petitioner from 8-10-1996 with all consequential benefits,
(iii) it may kindly be held that the termination of the services of the petitioner was completely illegal and unjustified and the order of termination dated 8-10-
1996 may kindly be deemed to have been rendered ineffective in view of the report of the Assistant State Commissioner, (Downloaded on 05/09/2019 at 09:17:16 PM) (2 of 20) [CW-9268/2019]
(iv) cost of the case(s) throughout and the compensation for 24 years of harassment may also kindly be allowed,
(v) any other order or direction which this Hon'ble Court deems fit just and proper in favour of the petitioner & Justice may kindly be passed."
2. An advertisement was issued by the respondent-Rajasthan State Bharat Scouts & Guides Association in the local daily newspaper i.e. Rajasthan Patrika on 30/06/1993 for appointment of on two posts of Clerk-cum-Typist on a consolidated salary of Rs.1000/- per month. The petitioner, having the required qualification of knowledge and experience of electronic typewriter, submitted application for recruitment. The interviews were conducted by the State Secretary of the respondents which were ratified by the State Commissioner as well as the State Chief Commissioner and the petitioner was appointed against the vacant post vide order dated 06/08/1993. The appointment initially was for a period of three months but continued to be extended upto 01/04/1996.
3. The petitioner was neither confirmed nor granted regular pay-scale in spite of the provisions under the relevant Rules and the recommendations being made by the authorities of the respondents. In the meanwhile, the respondents, adopting a discriminatory attitude, appointed Ms. Archana Chorasiya as Computer Operator on adhoc basis on fixed salary of Rs.1,000/-
per month who was subsequently regularized and granted regular pay-scale after one year's service as per the Rules. The respondents also appointed Shri Neeraj Jain and Shri Dheeraj Shailey, who were again appointed on temporary basis after the petitioner was appointed and all of them were given enhanced (Downloaded on 05/09/2019 at 09:17:16 PM) (3 of 20) [CW-9268/2019] pay-scales after the exercise conducted as per the advertisement dated 19/05/1996.
4. The petitioner, upon finding that the other employees who were subsequently appointed after him got benefits whereas he was deprived of the same, filed a writ petition on 08/09/1996 before this Court for regularization but the respondents immediately thereafter terminated his services vide order dated 08/10/1996. The writ petition was dismissed on the ground that the Rajasthan State Bharat Scouts & Guides Association was not an authority within the meaning of Article 12 of the Constitution of India. The petitioner challenged the order of learned Single Judge by filing D.B. Special Appeal No.87/2010 which was also dismissed by the Division Bench upholding the order of the learned Single Judge dated 04/02/2011.
5. The petitioner thereafter submitted a representation to the State Government upon which the State Chief Commissioner appointed the Assistant State Commissioner to enquire into the matter who submitted his reported on 04/04/2013. The report is on record and it clearly holds that services of the petitioner have been terminated in a malafide manner without adopting the procedure as provided under the law and without giving him opportunity to submit his defence. The report also held the termination of services of the petitioner as being prejudicial and arbitrary. However, without giving the petitioner copy of the report, the same was filed. The petitioner obtained copy of the report through RTI on 17/07/2014. The report was not implemented even it went to the level of the concerned Minister.
So, the petitioner was compelled to raise an industrial dispute and on failure of the conciliation proceedings, the petitioner submitted (Downloaded on 05/09/2019 at 09:17:16 PM) (4 of 20) [CW-9268/2019] statement of claim. Before the learned Labour Court, the petitioner relied upon the advertisement dated 30/06/1993 whereby the selection process for his selection was initiated;
appointment order dated 06/08/1993; representations dated 11/03/1994 & 03/06/1996; appointment order of Ms. Archana Chorasiya dt. 20/02/1993 on fixed salary; appointment order of Ms. Archana Chorasiya dt 02/04/1994 on regular pay scale;
appointment order of Mr. Dheeraj Shailey dated 31/05/1994 on fixed salary; fresh appointment order of Mr. Dheeraj Shailey and Mr. Neeraj Jain in pursuance to advertisement dated 19/05/1996;
termination order of petitioner dated 08/10/1996; office order dated 09/12/1999 giving regular pay-scale after regularization to Mr. Dheeraj Shailey and Mr. Neeraj Jain; letter dated 22/03/2013 of Chief Secretary to the respondents for submitting the investigation report and investigation report dated 04/04/2013 etc.
6. The learned Labour Court passed an award on 31/10/2018 to the effect that the petitioner is not entitled to any relief.
7. Mr. Kunal Rawat, learned counsel for the petitioner submitted that the learned Labour Court has denied the relief on the ground that the Rajasthan State Bharat Scouts & Guides Association was not an industry and thus the petitioner was not entitled to invoke protection as provided under the Industrial Disputes Act against the respondents. Learned counsel also submitted that the learned Labour Court has wrongly held the dispute to be belated while the petitioner was pursuing his writ petition and Special Appeal before this Court and the investigation was being conducted by the respondents themselves. Counsel further submitted that the learned Labour Court has failed to consider the report dated (Downloaded on 05/09/2019 at 09:17:16 PM) (5 of 20) [CW-9268/2019] 04/04/2013 given by the Assistant State Commissioner under direction of the State Chief Commissioner which clearly gave a finding that termination of services of the petitioner was illegal, malicious and contrary to the principles of natural justice. Learned counsel further submitted that declaring the report to be irrelevant by the learned Labour Court was ignoring the strong claim of the petitioner. Counsel further submitted that the persons junior to the petitioner were regularized and their services were continued and there there was clear violation of provisions of Section 25-G of the Industrial Disputes Act as there is no exception to Section 25-G of the Act of 1947 on the ground on which defence has been taken by the respondents that those persons were subsequently re-
appointed in pursuance of the advertisement dated 19/05/1996.
Learned counsel further submitted that holding of Rajasthan State Bharat Scouts & Guides Association not an industry as it was not a profit making body was illegal as profit motive is not relevant for an establishment for being industry under the provisions of the Act of 1947. He has drawn attention of this Court towards definition of industry under the Act of 1947 which reads as under:-
"Section 2(J):-
"industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen."
8. Learned counsel for the petitioner relied upon the judgment of the Apex Court in Bengalore Water Supply & ors. Vs. R.Rajappa & ors.:1978(2) SCC 213 as well as judgment of Delhi High Court in Nehru Yuva Kendra Sangathan Vs. Union of India & Ors.: (2001) ILLJ 191 Del..
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9. Learned counsel for the petitioner further submitted that the petitioner cannot be rendered remediless and since he was a Clerk-cum-Typist, therefore, he should have been given the benefit on account of violation of Section 25-G of the Act of 1947.
10. On the other hand, Mr. Subodh Shah, learned counsel for the respondents did not oppose the submission of learned counsel for the petitioner that the respondents come within the definition of an industry and has virtually conceded that the protection under the Industrial Disputes Act cannot be denied to the petitioner.
However, he strongly opposed the writ petition on merits stating that the advertisement dated 19/05/1996 was for regular recruitment and on account of similarly situated persons appointed after the petitioner having been regularized, it cannot be said to be violation of Section 25-G of the Act of 1947. Learned counsel further submitted that Archana Sharma, Neeraj Jain and Dheeraj Shailey, though were appointed subsequent to the petitioner, but were regularized only in pursuance of the advertisement dated 19/05/1996. Learned counsel has taken this Court to the cross-examination which took place before the learned Labour Court to show that the earlier writ petition was for regularization and confirmation and not against the termination order. He further submitted that the petitioner did not participate in the selection process arising out of the advertisement dated 19/05/1996 which is also reflected in the cross-examination of the petitioner himself. Counsel submitted that the selection process vide advertisement dt. 19/05/1996 was a process for regular appointment and since the petitioner admittedly did not participate in the same and Archana Sharma, Neeraj Jain and (Downloaded on 05/09/2019 at 09:17:16 PM) (7 of 20) [CW-9268/2019] Dheeraj Shailey, the alleged similarly situated persons were regularized only pursuant to the said advertisement dated 19/05/1996, therefore, no right creates in favour of the petitioner and therefore, he submitted that the award passed by the learned Labour Court does not call for any interference.
11. After hearing learned counsel for the parties and perusing the material available on record, this Court finds that the dismissing claim of the petitioner on the premise that the respondent is not an industry cannot be sustained in light of the fact that definition of industry has been widely construed in the judgment rendered by the Apex Court in Bengalore Water Supply & ors. Vs. R.Rajappa & ors. (supra) as well as judgment rendered by Delhi High Court in Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. (supra).
12. In Nehru Yuva Kendra Sangathan Vs. Union of India & Ors. (supra), the Delhi High Court has held as under:-
"4. Whether Nehru Yuva Kendra is "Industry":
It is the submission of the petitioner that the petitioner is a registered society in the name of Nehru Yuva Kendra Sangathan (NYKS) under theSocieties Registration Act,1860. This Sangathan started in 1972 under the Ministry of Human Resource Development, Department of Youth Affairs & Sports, Government of India. The main objects of the NYKS are social trans formation in rural area, and in preserving, promoting and developing concept of unity and national integration, discipline, selfhelp and secularism, democracy, scientific tempore, cultural and heritage, functional literacy, building awareness among the rural youths and in providing avenues to the Youth to strive towards excellence in all spare of activities. The programmes are proposed by HRD Ministry/Ministry of Youth Affairs & Sports and the same is completely funded by the Ministry for the training programmes, social service programme, sports, games, physical education and adult literacy etc. It was further submitted that NYKS is an organisation and the same is dedicated to implement the different projects of the Ministry of HRD and has been working under the guide (Downloaded on 05/09/2019 at 09:17:16 PM) (8 of 20) [CW-9268/2019] lines of the Government of India. Therefore, an activity of Govt. of India undertaken through the NYKS herein cannot be regarded as "Industry" because the same is done in discharge of its sovereign functions. The petitioner herein is engaged in discharging of its sovereign function for the public welfare and hence the same does not fall under the definition of "Industry" as defined under Section 2(j) of Industrial Disputes Act,1947. In support of his submissions, learned counsel relied upon the judgment of Supreme Court in the case of Physical Research Laboratory Vs. K.G.Sharma . It was also submitted that the petitioner herein is engaged in Public Welfare functions and discharging the directive principles of the State Policy. It is also carrying on different projects to promote the national integration, developing critical awareness among the Youth of country of their environments and social service programmes. The Hon'ble Supreme Court has also held in the case of Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and Others that the activity undertaken by the State and when the same are governed by the separate rules and constitutional provisions such as Articles 310 and 311 should strictly speaking be excluded from the sphere of Industry by necessary implications. The main objects of NYKS are to provide social services to the Public at large and the same are done without expecting any return in the form of monetary or in any other form and it is further submitted that social evolution is a process of constant growth and the State cannot afford to stand still without taking adequate measures through different organisations and hence the services provided by NYKS cannot be defined as Industry. The Hon'ble Supreme Court has also held that the word industry can reasonably mean only activity which results in goods made and manufactured or service rendered which are capable of being converted into saleable ones. They must be capable of entering the world of "res commercium"
although they may be kept out of the market for some reason. It is not the motive of an activity in making goods or running a service but the possibility of making them marketable if one who makes goods or renders service so desires, that should determine whether the activity lies within the domain or circle of industry. In the petitioner's Sangathan the employees/volunteers do the services to the community at large without any profit motive and the petitioners' activity are completely in the name of sovereign function.
5. On the other hand Mr.Sanjay Parikh, learned counsel appearing for the workman submitted that the petitioner was an "Industry" within the meaning of Section 2(j) of the I.D. Act and this aspect was clearly (Downloaded on 05/09/2019 at 09:17:16 PM) (9 of 20) [CW-9268/2019] answered by Supreme Court in the case of Bangalore Water Supply & Sewerage Board Vs. A. Rajappa and Others . He submitted that the said judgment holds the field till date and in fact whenever the another Bench of Supreme Court took contrary view it was specifically overruled by the Larger Bench of the Supreme Court relying upon Bangalore Water Supply case (supra To substantiate this, he submitted that the Supreme Court in two judgments, namely, SubDivisional Inspector of Posts Vs. Theyyam Joseph and in Bombay Telephone Canteen Employees Association Vs. Union of India had distinguished Bangalore Water Supply case (Supra) and had held that the establishments therein were not covered by the definition of industry. These two judgments were overruled by a Bench of 3 Judges in General Manager, Telecom Vs. S. Srinivas Rao where it was held that Bangalore Water Supply case (supra) holds the field. Thereafter in Coir Board Vs. Indira Devi the Su preme Court had cited Physical Research Laboratory case (Supra) and also other cases mentioned above, in paras 17 & 18 of its judgment, and had decided to refer the decision in Bangalore Water Supply case (supra) for reconsideration by a Larger Bench. Subsequently, three Judges of the Supreme Court held by its order dated 10th November,1998 in Coir Board case (supra) held that Bangalore Water Supply case (supra) does not require any reconsideration. Learned counsel relied upon Paras 126, 140, 141, 142 and 143 of the judgment of Supreme Court in the case of Bangalore Water Supply case (supra) and submitted that in these paras it has been categorically held that a cooperative societies and other societies are industries. The activity of the petitioner is a systematic activity organized by cooperation by employer and employee and it is meant for services to satisfy human wants and wishes. The profit motive is immaterial; philanthropy is immaterial and the decisive test is to see the nature of activity with special emphasise on employer-employee relationship. If one looks at the resolution, Nehru Yuva Kendra Sanghatan (Service Regulations 1987 and the Rules of Nehru Yuva Kendra Sanghatan and also illustrative list of activities undertaken by Nehru Yuva Kendra, it becomes clear that all the tests given in Bangalore Water Supply case (supra) are fulfillled to declare Nehru Yuva Kendra Sanghatan an "industry" under Section 2(j) of the I.D. Act, 1947. It was also submitted that the petitioner had not raised the contention that petitioner was doing sovereign function before the CGIT and in any case the function being discharged by the petitioner cannot be treated as sovereign function.
6. 6. Obviously Bangalore Water Supply case (supra) which is 7 Judge Bench Judgment rendered by (Downloaded on 05/09/2019 at 09:17:16 PM) (10 of 20) [CW-9268/2019] the Apex Court still holds the field. This does not need any clarification or detailed discussion. Still one may refer to observations of the Supreme Court judgment in the case of General Manager, Telecom Vs. S.Srinivas Rao (supra) wherein three judges Bench judgment specifically stated that the aforesaid judgment continues to be enforced and is a binding precedent. In this case Supreme Court laid down triple elements to determine as to whether a particular establishment would be industry within the meaning of Section 2(j) of the I.D. Act. Discussion on this aspect can be found in para -140 of the Bangalore Water Supply case (supra), which reads as under :
140. 'Industry' as defined in Section 2(j) and explained in Banerji (supra), has a wide import.
(a) Where (i) systematic activity, (ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss e.g. making, on a large scale prasad or food), prima facie, there is an 'industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.
Further in para-142 of the judgment, Supreme Court observed that even professions, clubs, educational institutions, cooperatives, research institutes, charitable projects and other kindred adventures would fall in the definition of industry if they fulfill the aforesaid triple tests. The particular establishments may qualify for exemption in the following cases:
"142 .......
(a) .......
(b) A restricted category of professions, clubs, co-
operatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are enter tained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.
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(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt - not other generosity, compassion, developmental passion or project".
Thereafter the Court proceeded to lay down the dominant nature test in para-143, which reads as under:
"143. The dominant nature test:
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (supra) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur (supra), will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby".
7. The case of the petitioner is to be adjudged on the basis of aforesaid triple tests laid down by the Supreme Court. From the arguments advanced by learned counsel for the petitioner one can say that petitioner was registered as a Society with laudable and altruist objectives in mind. However, that by itself would not qualify for exemption inasmuch as absence (Downloaded on 05/09/2019 at 09:17:16 PM) (12 of 20) [CW-9268/2019] of profit motive or gainful objective is irrelevant. Likewise even educational institutions, charitable projects and other kindred adventures would be industry, if they fulfill triple tests. It cannot be denied that there is a systematic activity which is organized by cooperation between employer and employees and services are rendered to satisfy human wants and wishes. Triple test is, therefore, satisfied in this case.
8. In fact it was mainly emphasised by the learned counsel for the petitioner that the function being discharged by the petitioner was a sovereign function and, therefore, it would qualify for exemption. However, the function being discharged by the petitioner cannot be treated as sovereign function which would take it outside the scope of Section 2(j) of the Industrial Disputes Act.
In Subparas (b) & (c) of Para-143 of Bangalore Water Supply case (supra), already reproduced above, the Supreme Court had clarified that-
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within Section 2(j).
9. Thus as per this para only those sovereign functions which are strictly understood as such would qualify for exemption and not the welfare activities or economic adventures undertaken by the Government or statutory bodies. The activity of the petitioner may be welfare activity but it is not sovereign function stricto senso.
10. Mr. Parikh, learned counsel for the workman is right in contenting that even Telecom Department of Union of India as well as Department of Posts were held to be an "Industry" and contrary view taken by two Judges Bench of Supreme Court was overruled in the case of General Manager, Telecom Vs. S.Srinivas Rao (supra). In this case J.S. Verma, Chief Justice, speaking for the Court referred to Para-143 of the Bangalore Water Supply case (supra) and held that these Departments were not engaged in discharging of the sovereign function of the State. As far as judgment of the Supreme Court in Physical Research Laboratory case (supra) is concerned, it is clearly distinguishable. In that case the Court clearly found that triple test as laid down in Bangalore Water Supply case (supra) was not fulfillled. For this, one may (Downloaded on 05/09/2019 at 09:17:16 PM) (13 of 20) [CW-9268/2019] usefully refer to discussion contained in para 12 of this judgment, which is as follows:
12. "PRL is an institution under the Government of India's Department of Space. It is engaged in pure research in space science. What is the nature of its research work is already stated earlier. The purpose of the research is to acquire knowledge about the formation and evolution of the universe but the knowledge thus acquired is not intended for sale. The Labour Court has recorded a categorical finding that the research work carried on by PRL is not connected with production, supply or distribution of material goods or services. The material on record further discloses that PRL is conducting research not for the benefit or use of others. Though the results of the research work done by it are occasionally published they have never been sold. There is no material to show that the knowledge so acquired by PRL is marketable or has any commercial value. It has not been pointed out how the knowledge acquired by PRL or the results of the research occasionally published by it will be useful to persons other than those engaged in such type of study. The material discloses that the object with which the research activity is undertaken by PRL is to obtain knowledge for the benefit of the Department of Space. Its object is not to render services to others nor in fact it does so except in an indirect manner".
11. Thus, the Court found that Physical Research Laboratory has engaged in pure research in space science. It was not intended for sale meaning there by no production, supply of material goods or services were involved as research was not for the benefit or use of the others. Thus third test laid down in Bangalore Water Supply case (supra) was clearly missing. Therefore, this judgment is of no help to the petitioner.
12. In view of the aforesaid discussions, I agree with the findings of the CGIT that petitioner is Industry within the meaning of Section 2(j) of the Industrial Disputes Act."
13. This Court finds that once the report submitted by the authority of the respondents was exhaustively in favour of the petitioner, then there is no reason for the learned Labour Court to completely ignore the same. The relevant portion of the report reads as follows:-
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izdV gqvk gS fd Jh Jh lqHkk"k xqIrk ds lkFk iwokZxzgiw.kZ joS;k viukdj mUgsa in ls gVk;k x;k gSA blds lkFk gh ;g Hkh izdV gqvk fd Jh uhjt tSu ,oa Jh /khjt 'kSyh rFkk lqJh vpZuk pkSjkfl;k dks fu;qDr djus ds ekeys esa LoPN izfdz;k ugha viukbZ x;kh gS rFkk ikjnf'kZrk dk vHkko j[kk x;k gS ,oa euekuk O;ogkj fd;k x;k gSA Jh lqHkk"k xqIrk dks loZizFke o"kZ 1993 esa ,d foKkiu izdkf'kr dj 1000@& :- ds ekfld fLFkj osru ij rhu ekg ds fy, fu;qDr fd;k x;k FkkA dkykUrj esa Jh lqHkk"k xqIrk ds dk;Z fu"iknu ds ckjs esa rRdkyhu lfpo Jh egkohj xSyM+k }kjk dk;kZy; i=koyh dh dk;kZy; i=koyh dh dk;kZy; fVIi.kh la[;k 19 esa ;g mYys[k fd;k x;k gS fd Jh lqHkk"k xqIrk bysDVªksfud VkbZijkbZVj ij Bhd dk;Z dj jgs gSaA vr% Jh xqIrk dks ns; osru jkf'k :- 1000 ls :- 1500 izfrekg c<+k;h tkosA vkxs dk;kZy; fVIi.kh la[;k 17 o 18 ij fnukad 20-9-95 dks lfpo Jh egkohj xSyM+k ds }kjk ;g mYys[k fd;k x;k gS fd orZrku esa laLFkk esa rhu dfu"B fyfid Iyku en esa iw.kZ LFkkbZ in ij vLFkkbZ :i ls dk;Z dj jgs gSa %& 1- Jh lqHkk"k xqIrk 2- Jh uhjt tSu 3- Jh /khjt 'kSyh fVIi.kh esa ;g Hkh myys[k fd;k x;k gS fd Jh lqHkk"k xqIrk dk p;u fof/kvuqlkj gqvk Fkk rFkk fnukad 1-9-95 rd budk dk;Zdky 1 o"kZ 2 ekg gks x;kA mlh fVIi.kh esa ;g Hkh mYys[k fd;k x;k gS fd Jh uhjt tSu ,oa Jh /khjt 'kSyh Iyku en esa fu;fer osru J`a[kyk esa fnukad 31-5-1994 ls dk;Z dj jgs gSaA budk p;u fu;kstu dk;kZy; ls mfpr o;fDr ugha feyu ds dkj.k lh/ks gh fd;k x;k Fkk rFkk lafonk ds vk/kkj ij fLFkj osru ij dk;Z dj jgs gSaA fnukad 1-9-1995 dks budk dk;Zdky 1 o"kZ 3 ekg gks x;kA dk;kZy; fVIi.kh la[;k 18 esa lfpo ds }kjk vkxs ;g mYys[k fd;k x;k gS fd bl izdkj ls bu rhu O;fDr vuqca/k ds vkk/kkj ij dk;Z dj jgs gSa vkSj budk p;u fu;fer ugha gSA laLFkk ds ctV esa 3 in gSa ftUgsa ekuk gSA ,d in ukWu Iyku esa rFkk 2 in Iyku en esa gS] D;kafd bu rhuksa dks dk;Z djrs gq, ,d o"kZ ls vf/kd dk le; gks x;k gS (Downloaded on 05/09/2019 at 09:17:16 PM) (15 of 20) [CW-9268/2019] vr% laLFkk ds fu;ekuqlkj bUgsa mijksDr inksa ij fu;fer fd;k tk ldrk gSA bl fVIi.kh esa lfpo Jh egkohj xSyM+k us ;g Hkh fo'ks"k mYys[k fd;k gS fd ;fn Jh lqHkk"k xqIrk dks fu;fer in ij fy;k tkrk gS rks mldh vuqcU/k frfFk fnukad 26-7-1993 iwoZ esa gh TokbZu gqbZ ekuuh gksxh D;ksafd orZeku esa ;s vksoj,t gSA dk;Zy; fVIi.kh la[;k 19 esa jkT; eq[;ky;
Vªstjj ds }kj ;g mYys[k fd;k x;k gS fd xqIrk dks fnukad 26-7-1993 ls gh laLFkk esa fu;qDr O;fDr ekurs gq, fu;fer fu;qfDr fnuakd 1-4-1995 ls nh tk ldrh gSA blh dh fujUrjrk esa dk;kZy; fVIi.kh la[;k 21 ij ;g mYys[k fd;k x;k gS fd bl izdj.k dh vkt tkap dh x;hA rhuksa gh deZpkjh ¼17@,u½ ,oa 18@lh ;kuh fd Jh lqHkk"k xqIrk] Jh uhjt tSu vkSj Jh /khjt 'kSyh rnFkZ vk/kkj ij j[ks x;s gSA Jh xqIrk dk in rks foKkfir fd;k x;k Fkk fdUrq ckn ds Jh uhjt tSu ,oa Jh /khjt 'kSyh iw.kZr% ihVs ds njokts ls j[ks x;s gSaA bl fo"k; esa vkxs dk;kZy; fVIi.kh 24] 25 ,oa 26 dk voyksdu fd;k tkuk ykHknk;d gksxkA dk;kZy; fVIi.kh la[;k 24 esa ;g mYys[k fd;k x;k gS fd jkT; eq[;ky; ctV ij orZrku esa 5 fyfid fLFkj osru :-
1500@& izfrekg ij dk;Z dj jgs gSaA buesa ls 2 in uksu Iyku en ,oa 2 in Iyku en ds varxZr fu;fer osru J`a[kyk esa esa Lohd`r gSA ,d fyfid dk O;; Iyku en esa Lohd`r VkbZijkbZfVax dk;Z lafonk ds vk/kkj ls Hkqxrku fd;k tk jgk gSA bl fVIi.kh esa fooj.k esa dze la[;k 5 ij Jh lqHkk"k xqIrk dk ukeksYys[k djds mldks Iyku en esa VkbZfiax dk;Z lafonk vk/kkj ij fu;ksftr n'kkZ;k x;k gSA dze la[;k 6 ij ,d in fjDr& ukWu&Iyku ij izkIr yele jkf'k ds vraxZr mYys[k fdk;k x;kA dk;kZy; fVIi.kh la[;k 26 esa Jh egkohj xSyM+k ds }kjk ;g mYys[k fd;k x;k gS fd Iyku en esa VkbZi dk;Zlafonk ds vkk/kkj ij djkus dks izko/kku gS fdUrq fyfid in dk izko/kku ugha gSA ukWu Iyku ds fjDr in ij ;kfu dz-la- 6 ij mfYyf[kr in ij Jh lqHkk"k xqIrk] dz-la- 5 dks n'kkZuk mfpr gS] rnuqlkj Lohd`fr nh tkrh gSA Jh lqHkk"k xqIrk ds }kjk vius izfrosnu esa bu vkjksiksa dk mYys[k fd;k x;k gS fd mudh lsok,sa } s"krkiwoZd lekIr dh x;haA bl vkjksi ds fo"k; esa 'kklu (Downloaded on 05/09/2019 at 09:17:16 PM) (16 of 20) [CW-9268/2019] mi lfpo ¼izFke½ f'k{kk ¼xzqi&2½ foHkkx ds }kjk mi lfpo] eq[; lfpo] jktLFkku ljdkj dks izsf"kr muds uksV fnuakd 15-2-2013 ds fcUnq la[;k 3 esa ;g mYys[k fd;k x;k gS fd Jh xqIrk dk lsokdky larks"kizn ugha jgk FkA tcfd vfHkys[k ds vk/kkj ij oLrqfLFkfr blls fuEu izdkj ls izdV gksrh gS fd tqykbZ] 93 ls vDVwcj] 96 rd Jh xqIrk dks fujUrj dk;Z ij j[kk x;k Fkk ,oa mudh lsokvksa dks larks"kizn ekuk x;k Fkk vkSj blh ds dkj.k ls mudk ikfjJfed :- 1000@& ls c<+kdkj :-
1500@& :- izfrekg fd;k x;k FkkA jkT; eq[;ky; esa lVsV vkWxsZukbZts'ku dfe'uj ¼xkbM½ ds i= Øekad 7140 fnukad 1-4-1996 ds }kjk ;g izekf.kr fd;k x;k gS fd Shri Subhash Gupta Type-cum-clerk is working efficiently in this office, he is hard working sincerely, punctual, honest person.
'kklu mi lfpo ¼izFke½ ds mijksDr uksV ds fcUnq la[;k&4 esa ;g mYys[k fd;k x;k gS fd Jh xqIrk dfFkr vf/kdkjh iq=ksa dks vfu;fer <a+x ls fu;qfDr dh ckr fujk/kkj gSA tcfd vfHkys[k ds vkk/kkj ij oLrqfLFkfr fHkUu izdkj ls izdV gksrh gSA tSlkfd mij mYys[k fd;k tk pqdk gS fd jkT; eq[;ky; esa Vsªtjj ds in ij dk;Zjr inkf/kdkjh dh dk;kZy; fVIi.kh la[;k 21 esa ;g mYys[k fd;k x;k gS fd Jh xqIrk dk in rks foKkfir fd;k x;k FkkA ckn ds Jh uhjt tSu vkSj Jh /khjt 'kSyh dks ihNs ds njokts j[kk x;kA blh fo"k; esa dk;kZy; fVIi.kh la[;k 19 esa rRdkyhu lfpo Jh egkohj jkt xSyM+k }kjk ;g mYys[k fd;k x;k gS fd Jh uhjt tSu] Jh /khjt 'kSyh dk p;u fu;kstu dk;kZy; ls mfpr O;fDr ugha feyus ds dkj.k lh/ks gh fd;k x;kA blh LohdkjkRed fVIi.kh ls ;g Li"V gks tkrk gS fd ;|fi vkSipkfjdrk ds uke ij fu;kstu dk;kZy; ls uke ekaxs x;s Fks] ijUrq muesa ls fdlh dks fu;qfDr ugha nh tk dj laxBu esa dk;Zjr nks lgk;d lfpoksa] Jh ygjflag csykor ds iq= Jh uhjt tSu ,oa Jh vejukFk 'kSyh ds iq= Jh /khjt 'kSyh dks fof/klEer izfdz;k dh ikyuk fd;s fcuk] euekus rjhds ls fu;qfDr iznku dj nh xbZA bl izdkj ls Jh xqIrk dk ;g vkjksi lgh fl) gksrk gS fd laxBu esa dk;Zjr nks lgk;d lfpoksa ds iq=ksa dks vfu;fer :i ls fu;qfDr nh xbZA (Downloaded on 05/09/2019 at 09:17:16 PM) (17 of 20) [CW-9268/2019] 'kklu mi lfpo ¼izFke½ ds mijksDr uksV ds fcUnq la[;k 5 o 6 es ekuuh; mPp U;k;ky; ds }kjk Jh xqIrk }kjk izLrqr fd;s x;s U;kf;d izdj.kksa dks [kkfjt fd;s tkus dk mYys[k fd;k x;k gSA ;g lgh gS fd ekuuh; mPp U;k;ky; ds }kjk Jh xqIrk ds izdj.kksa dsk [kkfjt fd;k x;k] fdUrq ;g Hkh lgh gS fd ekuuh; mPp U;k;ky; ds }kjk U;kf;d izdj.ksa dsk xq.k&voxq.k ds vk/kkj ij [kkfjt ugha fd;k x;k Fkk cfYd vkfVZdy &12 laLFkk ij ykxw ugha gksus ds rduhdh dkj.k ls Jh xqIrk ds U;kf;d izdj.kksa dks [kkfjt fd;k x;kA bl izdkj ls mijksDr lHkh rF;ksa ds vk/kkj ij ;g fu"d"kZ fudyrk gS fd Jh lqHkk"k xqIrk dks Jh uhjt tSu ,oa Jh /khjt 'kSyh ds lkFk&2 muls Hkh igys ls flFj osru ij mUgha ds leku osru jkf'k ij j[kk x;kA izFke ckj Jh lqHkk"k xqIrk dks vuqcaf/kr djrs le; rd os vksoj,t ugha gq, FksA ;fn muds ekeys esa le; ij ln~HkkoukiwoZd ,oa LoPN rFkk ikjn'khZ izfdZ;k viukdj dk;Zokgh dh tkrh rks Jh lqHkk"k xqIrk dks fu;fer in ds fo:) fu;qfDr fn;s tkus esa vksoj,t gksus dh ck/kk vkMs ugha vkrhA esjh lEefr esa mijksDr rF;ksa ds vk/kkj ij lqfo/kk dk larqyu Jh lqHkk"k xqIrk ds i{k esa fl) gksrk gSA jkT; eq[;ky; ds vkns'k dzekad 12814 fnukad 8-10- 1996 ds }kjk mudh lsok,sa lekIr dh x;h gSA mDr vkns'k esa igys rks ;g mYys[k fd;k x;k gS fd Jh lqHkk"k xqIrk fLFkj osru fyfid ¼dUVhtsUlh½ jkT; eq[;ky;] t;iqj dks fnukad 1-7-96 ls 8-10-96 rd iw.kZr% vLFkk;h :i ls dk;Z djus dh Lohd`fr nh tkrh gSA bl frfFk ds i'pkr budh lsok,sa lekIr dh tkrh gSA ;kuh fd ,d gh vkns'k esa cSdMsV ls lsok,sa c<kbZ x;kh vkSj mlh rkjh[k dks mlh LVªksd vkWQ isu ls mldh lsok,sa lekIr dh x;hA bl rF;k ds vk/kkj ij Jh xqIrk ds bl vkjksi dks cy izkIr gksrk gS fd mudh lsok,sa nqHkkZouko'k ,oa }s"kiwoZd lekIr dh x;h FkhA Jh xqIrk dh lsok,sa nqHkkZouk ls ,oa iwokZxzgiwoZd] fof/kd izfdz;k dh ikyuk fd;s fcuk ,oa Jh xqIrk dks viuk i{k izLrqr djus dk volj fn;s fcuk] euekus <ax ls lekIr dh xbZ FkhaA vr% Jh lqHkk"k xqIrk dks nfukad 8-10-1996 ls lsok esa fy;k tkuk U;k;kfpr izrhr gksrk gSA ;fn blds fy, laLFkk esa orZrku esa in miyC/k ugha gS rks (Downloaded on 05/09/2019 at 09:17:16 PM) (18 of 20) [CW-9268/2019] uohu in ds l`tu ,oa ctV vkoaVu ds fy, jkT; ljdkj dks izdj.k izLrqr fd;k tk ldrk gSA Hkonh;
¼jktiky flag pkSgku½ vfrfjDr jftLVªkj ¼izFke½ ,oa lgk;d LVsV dfe'uj] jktLFkku jkT; Hkkjr LdkmV xkbV t;iqj
14. This Court is also of the view that the finding arrived at by learned Labour Court holding that in view of the respondents not being treated as an industry the petitioner ought to have approached the Rajasthan Non-Government Educational Institutions Tribunal would be leaving the petitioner neither here nor there as the definition of industry under the Act of 1947 is very wide and the petitioner could have easily construed as a workman to be protected under the provisions of the Act of 1947.
This Court has seen the advertisement dated 19/05/1996 which clearly reflects that the advertisement itself was not for regular selection process but was only for contractual temporary appointment. The advertisement dated 19/05/1996 is reproduced as under:-
"Your advertisement appeared in our issue of 19-5- 1996 jktLFkku jkT; Hkkjr LdkmV o xkbM] jkT; eq[;ky;] ctkt uxj] t;iqj ij fyfid] fgUnh o vaxszth Vad.k dk Kku gks] fLFkj osru ij 2800@& izfrekg] lafonk ds vk/kkj ij vLFkkbZ vk;q vf/kdre 33 o"kZ] vkosnu lkns dkxt ij 3-6-96 rd dk;kZy; esa izkIr gksus pkfg,] jkT; lfpo"
15. The earlier writ petition filed by the petitioner was although pertained to regularization and confirmation but would have (Downloaded on 05/09/2019 at 09:17:16 PM) (19 of 20) [CW-9268/2019] provided substantial relief to the petitioner if the matter could have been adjudicated on merits but since it was dismissed simply on account of the respondents not being State, the adjudication could not culminate into relief for the petitioner. The writ petition was filed in the year 1996 and the Division Bench dismissed the special appeal on 04/04/2011 and therefore, contest to the relief was clearly reflected in the on-going litigation. The conduct of the respondents is further shadowed in light of the fact that since the earlier writ petition was filed on 08/09/1996, the petitioner's termination order was passed on 08/10/1996. The cross-
examination of the petitioner clearly reflected that he did not participate in the process arising out of the advertisement dated 19/05/1996 but the same is of no consequence because the initial appointment of the petitioner was almost on same terms as made on 30/06/1993 and since the services of the petitioner were being regularly extended, therefore, there was no requirement for him to again participate in the advertisement which was also for temporary contractual appointment and not for regular selection process. On the fact of it, the argument advanced by learned counsel for the petitioner that the private persons were given regular appointment and regular pay-scales pursuant to advertisement dated 19/05/1996 does not hold good as the same advertisement clearly reflects the selection process to be for temporary and contractual appointment. This Court, thus, finds that the award passed by the learned Labour Court is not only contrary to law but has also not taken into consideration the facts which were relevant including the report which has been reproduced in this judgment.
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16. After observing the aforesaid, the predicament before this Court is that though grave injustice has been done with the petitioner but his termination order came to be effected on 08/10/1996 and for last 23 years, he is not discharging his service. Thus, in such prolonged severance of service, this Court considers it a case at best for consideration for grant of compensation to the petitioner in view of illegal termination order.
17. Consequently, the present writ petition is partly allowed. The impugned award dated 31/10/2018 is quashed & set aside and the respondents are directed to pay a compensation of Rs.Two Lac to the petitioner in lieu of reinstatement alongwith interest @9% per annum from the date of filing of the claim petition before the learned Labour Court. All pending applications also stand disposed of.
(PUSHPENDRA SINGH BHATI),J Raghu/ (Downloaded on 05/09/2019 at 09:17:16 PM) Powered by TCPDF (www.tcpdf.org)