Allahabad High Court
Chairman U.P. Co-Operative Spinning ... vs Amar Nath Dwivedi Son Of Shri Awadh ... on 8 August, 2006
Equivalent citations: 2007(1)AWC104
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. We are in respectful agreement with the reasoning given and the order passed by Hon'ble Mr. Justice A.K. Yog, on the 16th of July, 2002, granting the respondent-writ petitioner reinstatement in service, arrears salary and all benefits.
2. Although we adopt his Lordship's judgment, the principal reasons why we have felt persuaded in this manner need to be set out here.
3. The case of the appellant was that the writ petitioner was employed on or about 25.9.1998 purely on a contractual basis for one year. There was a written agreement to that effect of that date. The year ran out after one year. Thereafter the termination of the writ petitioner was automatic. No document needed to be forwarded by the Federation to the writ petitioner and none was forwarded. The writ petitioner was simply terminated, or put in another way orally terminated.
4. The first point to determine, in regard to this short term employment brought out by the State instrumentalities or their officer, is to see whether those are backdoor appointments or appointments made by this state officer or that without paying any regard to the Rules of recruitment and the selection process. The recent seven Judges' Bench of the Supreme Court delivering judgment in the case of Uma Devi, reported at Judgment Today, 2006 (4) S.C. 420 was placed reliance on by the appellant in this regard.
5. Inter alia, paragraph 43 of the said judgment was placed. No doubt, if the employment of the writ petitioner was either irregular or merely ad hoc, no question of regularisation arise.
6. It has been stated for a long time past that if the appointment is not ad hoc or irregular, then and in that event, public employment in India has two characteristics and these two go on existing along with each other during the entire tenure of service. The first characteristic is that of contract and the second characteristic is that of status. The writ petitioner, appearing in person, (and he did a very good job) relied in this regard on the case of Girish Jayanti Lal Vaghela and Ors., being a judgment of the Supreme Court delivered on the 2nd of February, 2006 in Civil Appeal No. 933 of 2006. He placed portions of the judgment from paragraph 14 and those might be referred to in this regard. The matter is settled from the line of Dhingra.
7. The issue, which has to be determined is what was the status, if any, of the writ petitioner at the time he entered into the contract of employment. The Hon'ble Single Judge has held that his status was that of a probationer. His Lordship has further opined, on the basis of documents, which were before his Lordship that there was a recommendation of good performance in favour of the writ petitioner in the service, which he rendered during his year of service when he was actually working.
His Lordship said as follows: "the aforesaid circumstance is fully fortified in view of endorsement of the concerned competent authority in the Mill at Amroha who did certify/verify specifically good conduct and performance of duties by the petitioner and further recommending his regularisation on petitioner's representation dated 29.7.1999 (see paragraph-10 read with Annexures-7 and 8 to the petition)".
8. The reasons why there can be no two opinions about the employment of the writ petitioner being regular and front door as many-fold. The process of employment started with an All India advertisement; a copy of the English advertisement, which was seen by the writ petitioner, then working at Gujarat, is annexed at page 55. It mentions no fewer than ten different posts starting from Secretary/General Manager and goes up to Assistant Manager Marketing (All India Sales).
9. The writ petitioner applied for the 8th of the posts advertised, which was that of a "Training Officer".
10. It is an admitted position that during the fateful year, the writ petitioner was not training any officer. So far as the name of the advertised posts can signify, he could only have been training himself as an officer and there are several officers' posts mentioned in the 1993 Service Rules of the Federation, one such being, say, Welfare Officer.
11. The advertisement mentioned that there would be a walkin interview; an interview of the writ petitioner was also did. There was as the Federation as supposed to have a Selection Committee at the time of entry of employees; there was a Selection Committee in this case also for the petitioner also.
12. On 7.9.1998, a letter was addressed by the appellants to the writ petitioner, which is at page 56 of the paper book. It mentions that the appellants were pleased to offer the writ petitioner appointment on the post of Training Officer "on contractual basis".
13. The appellants have laid the maximum of amount stress possible on this phrase, "contractual basis" and in the ultimate analysis, there is not a single other point in their favour than this phrase. On a conspectas of facts it will be seen that this phrase cannot have anything like that sort of weight in determining the true status and position of the writ petitioner. The letter of appointment did not mention that the employment of the writ petitioner would be for one year only. It asked for the following credentials: (i) proof of age, (ii) proof of physical fitness, (iii) character certificate from two Gazetted Officers, and (iv) photocopies of all certificates and testimonials duly attested by the Gazetted Officer. The employment was thus, not either a snap employment or a back door employment and had all the happing of the commencement of a regular public service career.
14. The writ petitioner has emphasised that he came away from Gujarat to work at Uttar Pradesh on the basis of this offered employment and this offered employment only. That he came away from Gujarat can hardly be disputed. There is no reason to disbelieve that he was doing some of work, however lowly it might be, at Gujarat; there is no other evidence to the contrary.
15. The writ petitioner accepted the offer letter of 7.9.1998 in writing on 25.9.1998 in very short and simple terms.
16. He joined services on 25.9.1998. The contract of employment was thus, at least partly substantially formulated on the basis of the two above letters alone.
17. An agreement for employment in full form was signed apparently on 25.9.1998 it self. Some of the terms and their effects are mentioned below. On 6.10.1998, there is also another letter written from the Federation-employer, which mentions about the 'contractual' appointment of the writ petitioner on the fixed salary of Rs. 6000/- (Six Thousand Only). That letter assigns duties of the writ petitioner to the Mill at Amroha and calls for the medical certificate, character certificate, educational certificate, experience certificate and application and other relevant papers.
18. The preamble of the written agreement is that the writ petitioner was appointed as a Training Officer (Contractual basis). The first clause states that the period of employment is for one year, extensible for upto three years by the Chairman of the Mill, but the extension would be at most for one year at a time. This period was mentioned for the first time in the agreement. The fourth clause mentions that the writ petitioner would be entitled to Employees Provident Fund, Casual Leave and 20 days Extraordinary Leave. The eighth clause mentions that he would be subject to the conduct and disciplinary rules as applicable from time to time. The thirteenth clause mentions that he would be subject to the provisions of the service Bye-laws applicable from time to time.
19. Section 122-A of the U.P. Co-operative Societies Act, 1965 provides for creation of service Bye-laws. The second sub-section provides that when any such service is created, all employees of such Societies existing on the date of creation of such service on the posts included in such service, shall be deemed to have been provisionally absorbed in the service with effect from the date of creation of such service.
20. The reading of the agreement shows that the writ petitioner was substantially being absorbed into the work force of the appellants and all rules including those of Provident Fund, conduct and discipline were being expressly made applicable to him.
21. The issue is whether as against this mass of material pointing towards regular appointment of a probationer for one year period, or three years period, the mere mention of contractual basis is sufficient to tilt the balance in favour of the appellants finally and totally.
22. There are several cases, which show that when an employee obtains service, he signs on the doted line and is not in a position to bargain a contract of employment, even the particularly tough terms therein, which appear to the Court to be clearly unconscionable. Reference was made by the writ petitioner in this regard to the L.I.C. case, reported at and passages were placed from paragraph 32 of the said judgment. In that paragraph, an extract from the judgment of Lord Denning as reproduced by the Supreme Court, and the said quotation runs as follows:
When it gets to this point, I would say, as I said many years ago, '...there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused'. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so.
23. If this is the position at the comparatively strict premises of the common law, the same principle would obtain with even greater force in the court of equity and it is well known that the writ courts in India are courts of equity. There can be no two opinions that in the instant case, the court has to relieve the writ petitioner from the oppressive burden of the single and inconsistent clause, or better one phrase only contractual basis; which (sec) his employment as one terminable with the running out of one year only, like a real property lease.
24. Hon'ble Mr. Justice A.K. Yog has quoted from Central Inland Water Transport Corporation Limited; a clause or phrase like, the above would be quite impossible to insert in the regular service stream of any public employment. It cannot be inserted as a sort of precautionary entry in a contract of service, which is in reality, a probationer's contract. Such contracts raise the usual (sic) expectation of the probationer that if he acts in service well, he will be absorbed like others similarly situated as him.
25. The writ petitioner being himself extremely concerned with his own career which is perhaps his bread and butter, sought to bring in extra material before us seeking to say that such persons, as Vijay Kumar and one Rakesh Singh, similarly situated like him were treated as probationers and confirmed; indeed papers are there which do not lack any authenticity.
26. We would not like base our opinion on further materials brought before us for the first time in the court of appeal, but we do have to remark this, that no materials were brought out by the Federation before us to show that the writ petitioner was not discriminated in any manner, and each and every one coming in with an initial specified period of appointment was treated as a mere contract employee and thrown out upon termination of this specified year.
27. On the above basis, we wholeheartedly agree with his Lordship's assessment that the writ petitioner was a probationer in reality; he was not treated as such; no consideration was made as to whether his services deserve to be regularised on the basis of due and proper performance.
28. In these circumstances, the Court has to give the writ petitioner relief by regularising his services, when no facts can be pointed out, which would disentitle him from such relief.
29. He has been branded as a litigious employee, filing petitions before the Human Rights Commission and before the Court of law.
30. We do not find the writ petitioner indulging in any legal activity during the year he was rendering service; it was only when he was being attempted to be thrown out, that he tried to put up a fight; nobody can blame a citizen for trying to preserve his own right and one can blame him even less for saving the job well for himself.
31. The appeal is hereby dismissed.
32. It is made clear that the appellants will be entitled to treat the writ petitioner as in their regular stream of employment and deal with him without any discrimination, as they deal with other regular employees. We make it clear also that this is not a bunch case and the writ petitioner is alone fighting in the peculiar facts and circumstances of his own case, which he has marshalled well and credtably put forward before the Court as mentioned above.
33. We further make it clear that at the time of alleged termination of service, the writ petitioner allegedly prayed for service certificate in any event, for permitting him to get alternative employment, but no papers were forwarded leaving him in a difficult position for finding alternative service; he claims that he has found none in the meantime and has been made to sit idle. His lordship has accepted this, and so do we.
34. No orders as to costs.