Uttarakhand High Court
Managing Director Uttarakhand Forest ... vs State Of Uttarakhand And Another on 12 December, 2017
Author: U.C. Dhyani
Bench: Rajiv Sharma, U.C. Dhyani
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 53 of 2015
Managing Director, Uttarakhand Forest
Development Corpn. & others .......... Appellants
versus
State of Uttarakhand
and another .......... Respondents
Mr. V.K. Kaparwan, Advocate for the appellants.
Mr. K.N. Joshi, Dy. Advocate General for State / respondent no. 1.
Mr. D.K. Joshi, Advocate for respondent no. 2.
JUDGMENT
Coram : Hon'ble Rajiv Sharma, J
Hon'ble U.C. Dhyani, J
Per: U.C. Dhyani, J
Present Special Appeal has been preferred against the judgment and order dated 03.11.2014, passed by learned Single Judge in Writ Petition no. 2019 (S/S) of 2013, Mahesh Chandra Singh vs State of Uttarakhand and others, whereby the writ petition was allowed.
2) Earlier, on filing a writ petition, as above, the petitioner (respondent no. 2 herein) prayed for the following reliefs, among others:
2(i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to regularize the services of the petitioner on the post of Scaler from the date his juniors have been regularized.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay all consequential benefits of the services to the petitioner.
3) Briefly put, respondent no. 2 was appointed as a Scaler in U.P. Forest Development Corporation, which, later on, in respect of the successor State of Uttarakhand, became Uttarakhand Forest Corporation. There is a dispute regarding the date of appointment of respondent no. 2 in the department. According to respondent no. 2, it was in the year 1991, but according to the appellant Corporation, it was in the year 1992. However, this fact is admitted to the appellants that respondent no. 2 was appointed as Scaler on daily rated basis. Services of the respondent no. 2 were dispensed with vide order dated 21.11.1992.
4) Such an order was challenged by respondent no. 2 before Labour Court, which gave an award in favour of respondent no. 2 on 12.07.1999, holding that retrenchment of respondent no. 2 was in violation of the U.P. Industrial Disputes Act, 1947. Learned Labour Court gave an award in favour of the workman-respondent no. 2, directing that the workman shall be reinstated in service with full back wages, including continuity in service etc. This award was 3 notified under the provisions of the U.P. Industrial Disputes Act, 1947 (here-in-after referred to as 'the Act').
5) Said award was unsuccessfully challenged by the appellant Corporation by filing Writ Petition no. 2854 (M/S) of 2001, which was dismissed on 25.09.2003. The same was assailed before Hon'ble Apex Court. The relevant paras of the judgment rendered by Hon'ble Supreme Court read as under:
"45. We are, therefore, of the opinion that the writ petitioners (the respondents herein) who have not invoked the jurisdiction of the Tribunal are not entitled to any relief in the writ petitions. They are not entitled for any benefits of reinstatement, back wages and continuity of service.
46. On the other hand, the respondents in civil appeals arising out of the special leave petitions as detailed infra who approached the Tribunal and the High Court are entitled for the relief of reinstatement, back wages and continuity of service in view of our finding that the appellant Corporation is an industrial establishment and that provisions of Section 25-N of the Industrial Disputes Act are attached.
47. Learned counsel appearing for the respondents in the other civil appeals have adopted the arguments of Mr. Dhruv Mehta and Mr. Bharat Sangal.
48. For the foregoing reasons, we hold that the provisions of Section 25-N of the Industrial Disputes Act, 1947 are attracted and non-compliance with the said section makes retrenchment order illegal and non est."4
6) Since the termination of the workman-respondent no. 2 was in violation of Section 25 of the Act, consequently, the workman was reinstated in service in February 2010, after the Special Leave to Appeal filed by the appellants was dismissed by Hon'ble Apex Court.
7) In the writ petition, Mr. M.C. Pandey, learned Senior Counsel for appellant Corporation had apprised learned Single Judge that there are about 1500 vacancies of Scaler in the appellant Corporation and against these posts, only 700 and odd supernumerary persons are working. Thus, learned Single Judge, on the basis of information supplied by learned Senior Counsel for the appellant Corporation before him, has recorded that the posts of Scaler are vacant in the appellant Corporation.
8) Since the order of continuity of service of workman-respondent no. 2 stood upheld upto Hon'ble Supreme Court, therefore, workman-respondent no. 2 ought to have been regularized and for all practical purposes ought to have been treated to be continuous in service from his initial engagement on daily basis.
9) In view of above noted facts, the writ petition was rightly allowed by learned Single Judge by issuing a mandamus upon the appellant Corporation to regularize the services of the workman-respondent no. 2 against the vacant post of Scaler, provided the Scalers appointed in the year 1992, have been regularized. This regularization was to be made effective from the day any person who was 5 junior to the workman-respondent no. 2 was regularized in service.
10) There is no infirmity in the order appealed against.
11) We are unable to take a view contrary to what was taken by learned Single Judge.
12) Special appeal, therefore, fails and is dismissed.
(U.C. Dhyani, J) (Rajiv Sharma, J)
12.12.2017
Negi
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