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ASHISH KUMAR DIXIT versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ashish Kumar Dixit v. State Of U.P. And Others - WRIT - A No. 51033 of 2006 [2006] RD-AH 16439 (20 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.1

CIVIL MISC. WRIT PETITION NO. 51033 OF 2006

Ashish Kumar Dixit   v.   State of U.P. and others.

Hon'ble D.P. Singh, J

Heard learned counsel for the petitioner and Sri B.D. Mandhyan, Senior Advocate assisted by Sri Satish Mandhyan for the contesting respondents.

This petition is directed against an order dated 26th. December, 2006 by which the services of the petitioner has been dispensed with and salary has also been stopped.

It is pleaded that the petitioner, who was a physically handicapped person, was given an appointment in the respondent Mandi Samiti on 10th. April, 1996. However, he was restrained from signing the attendance register from 12.12.1997, thus he approached the High Court through Writ Petition No.5835 of 2000 but the writ petition was finally disposed off holding that if the petitioner is covered by the judgment dated 11.8.2000 rendered in Writ Petition No.1346 (S/S) of 1999, he should be extended the same benefit. In pursuance of the aforesaid, the respondents vide order dated 5.1.2001 rejected the claim of the petitioner holding that his case was not covered by the aforesaid judgment. Thereafter, the petitioner approached the State Government, which referred the dispute which was registered as Adjudication Case No.131 of 2001. After exchange of pleadings an award dated 14.11.2002 was rendered in favour of the petitioner holding that his disengagement was in violation of the statutory provisions and as such directed reinstatement with back wages. The aforesaid award was challenged by the respondents through Writ Petition No.9345 of 2004 wherein an interim order was passed staying the execution of the award subject to reinstatement of the petitioner and compliance of Section 17-B of the Industrial Disputes Act. In compliance thereof the petitioner was allowed to join his duties on 13.4.2004 and was being paid salary. All of a sudden vide the impugned order he has been held not entitled to continue in service and his salary has also been stopped on the basis of a judgment of the Supreme Court in the case of State of U.P.  v. Neeraj Awasthi [2006 (1) J.T. 19].

The petitioner's case was not covered by Neeraj Awasthi case as is evident by the order dated 5.1.2001 passed by the respondents themselves. Once the Apex Court rendered the judgment, the Board has taken a somersault and by the impugned order it has held that his case was also covered by Neeraj Awasthi's case. The order does not consider the effect of the award of labour court or the interim order passed by this Court on the writ petition of the Board. This itself is sufficient to quash the order as it smacks of non-application of mind. Nevertheless, the Court should consider the effect and the ratio of Neeraj Awasthi's case as Sri Mandhyan, with some vehemence, contends that all appointments made between 1.4.1996 to 30.10.1997 have to be cancelled.

The Apex Court itself was alive to the fact that there may be other employees whose services may have been terminated and who were not parties to the proceedings and thus while concluding in paragraph 77 made it clear in sub-para (vi) to the following effect :

"(vi) We are not oblivious of the fact that there may be some employees whose services have been terminated without any rhyme or reason. Mr. Verma appearing on behalf of the Board has assured us that the Board shall look into cases of such employees whose termination has been effected beyond the policy decision taken by the State although we do not intend to express any opinion as regards such employees."

In the aforesaid background if the facts of the present case as noted in the opening part of the judgment are examined, it would lead to no other conclusion than that unless the award of the labour court is set aside, may be on the ratio rendered in Neeraj Awasthi's case, but the present termination order cannot be sustained. The labour court in fact has found that the termination of the petitioner was in violation of the provisions of the U.P. Industrial Disputes Act. In Neeraj Awasthi's case the Board had argued, as noted in paragraph 10 (iv) as follows :

"(iv) Indisputably the provisions of U.P. Industrial Disputes Act and the rules framed thereunder relating to retrenchment of workmen were complied with and in that view of the matter it can be said that the orders of termination passed against the employees were illegal."

Even though, it held that persons appointed de hors the service rules had no right to continue, it held in the case of State of Madhya Pradesh V. Dharambir [J.T. 1998 (4) S.C. 363] in paragraph 33 that :

"They afortiori derive no legal right to continue in service subject, of course, to the compliance of the provisions of any other act or the rules conferring certain benefits to them."

In paragraph 44 it went on to hold that :

"If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected therein. Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days wages for each completed year of service by way of compensation."

No doubt, the services of the petitioner could have been dispensed with had the award of the labour court and the interim order of this Court not intervened, but once the award was in favour of the petitioner, the present impugned order cannot be passed.

However, Sri Mandhyan with his usual vehemence has held that the petitioner had no right as he was working on daily wage basis and, therefore, his continuance in terms of the award is in the teeth of the ratio in Neeraj Awasthi's case, therefore, was illegal. He has relied upon the ratio laid down by the Apex Court in the following four cases :

1. M.P. Housing Board and another v. Manoj Srivastava [(2006) 2 S.C.C. 702]

2. State of Madhya Pradesh and others v. Arjun Lal Rajak [(2006) 2 S.C.C. 711]

3. M.P. State Agro Industries Development Corporation Ltd. and another v. S.C. Pandey

[(2006) 2 S.C.C. 716]

4. Haryana State Agricultural Marketing

Board v. Subhash Chand and another [(2006) 2 S.C.C. 794].

In the opinion of the Court the ratio of none of the cases applies to the facts of the present case. May be the ratio laid down in the aforesaid cases can be utilized to impugne the labour court award in favour of the petitioner but, that petition is not before the Court at present.

Learned counsel for the petitioner has urged that until and unless the award of the Labour Court is set aside, the action of the respondents would not only be derogatory and in violation of the interim order but would also be against the principles of natural justice. The argument is well founded and merits acceptance on the present facts.

For the reasons above, this petition succeeds and is allowed and the impugned order dated 26.12.2005 is hereby quashed in so far as the petitioner is concerned and he would be entitled to all consequential benefit. No order as to costs.

D/- 20.9.2006

Hasan


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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