Delhi District Court
Sh. Mayank Garg vs Hardayal Municipal Public Library on 1 October, 2010
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IN THE COURT OF SH. DAYA PRAKASH
PRESIDING OFFICER LABOUR COURT NO. XVI
KARKARDOOMA COURTS : DELHI
LCA NO. 126/10
Sh. Mayank Garg
S/o Sh. Jai Prakash Garg
R/o E-49, Gali No. 4
Ashok Nagar
Delhi. ...... Workman
VERSUS
Hardayal Municipal Public Library
Through its Secretary
Gandhi Ground,
Chandni Chowk
Delhi-110006. ...... Management
Date of Institution : 07.05.10
Judgment reserved : 15.09.10
Date of decision : 01.10.10
ORDER
1. As per application, the petitioner is a workman employed with the management of Hardayal Municipal Public Library on the post of Library Attendant since 22.01.07. Initially he was appointed on daily basis but subsequently he was made a permanent employee w.e.f 02.05.07 in accordance with the rules and regulations of the management. It is stated that the petitioner worked satisfactorily and there was no complaint of any nature against him. It is alleged that from the month of April, 2007 the management stopped making payment of salary to the petitioner without any reason at all. The petitioner made LCA No. 126/10 1/13 -2- repeated verbal requests but the management failed to pay the salary. Despite non payment of salary, the petitioner continued to report for duty regularly as revealed by the attendance record. The petitioner also continued to perform the duties which were assigned to him. It is further stated that the petitioner lastly attended his job on 25.09.09. It is further stated that the management vide order dated 11.09.09 illegally and unlawfully annulled the services of the petitioner and other employees appointed between 1.04.06 to 11.06.07 'from the inception of appointment'. The said order was to take affect from two weeks after 11.09.09. The petitioner accordingly attended his job till 25.09.09 and thereafter he was not allowed to report for duty by the management. It is further stated that the action of management of annulling the services of the petitioner from the inception of appointment is completely illegal. In its effect the management has unlawfully and illegally terminated the services of the petitioner without making payment of his salary since April, 2007 and his other payable dues. It is further stated that to escape the consequences of its illegal actions, the management termed the illegal termination of services as "annulment of services from inception". It is further stated that the petitioner is entitled to receive the money benefits including salary w.e.f April, 2007 till date and all other dues/money benefits from the management. It is stated that salary from April, 2007 till 25.09.09 amounting Rs. 2,05,770/- is due towards the management. It is further stated that the petitioner sent a demand notice dated 13.10.09 upon the management demanding his dues and reinstatement. However, the management failed to meet the demands of the petitioner and also failed to give any reply to the said notice.
2. Notice of petiton was issued to management. AR for management appeared in pursuance of notice. Meanwhile, AR for management filed an application under section 11 of ID Act.
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 LCA No. 126/10 2/13 -3- 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 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 22.01.07, Library Attendant. It has been further stated that the applicant was made permanent w.e.f 02.05.07 and lastly attended his job on 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 LCA No. 126/10 3/13 -4- the period w.e.f 1.04.06 to 11.06.07 were illegal and void ab-initio, therefore, 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.
5. Reply to the application under section 11 of ID Act was not filed.
6. Arguments on preliminary issue heard on behalf of management.
Workman was directed to file written arguments. Perusal of file shows that neither anyone appeared on behalf of workman nor filed written arguments.
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 the claimant was engaged on daily wages w.e.f 22.01.07. He further stated that the LCA No. 126/10 4/13 -5- services of the claimant was made permanent w.e.f 02.05.07 on the post of Library Attendant and further that the services of the claimant were terminated w.e.f 25.09.09. 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, ab-initio, 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 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 LCA No. 126/10 5/13 -6- start a trial and then give findings in order.
7. I have seen the file, documents and in my considered opinion the present petition 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 700-800 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:
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:-LCA No. 126/10 6/13 -7-
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.
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 LCA No. 126/10 7/13 -8- 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 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 LCA No. 126/10 8/13 -9- 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."
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 LCA No. 126/10 9/13 -10- 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 non-compliance 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.
LCA No. 126/10 10/13 -11-3. 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 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. We find that there was sufficient material before the Inquiry Officer LCA No. 126/10 11/13 -12- 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 re-agitate 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."
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."LCA No. 126/10 12/13 -13-
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)
on 1st October, 2010 Additional District & Session Judge
Presiding Officer labour Court XVI
Karkardooma Courts : Delhi.
LCA No. 126/10 13/13