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Ranjit Singh v. V.C. - WRIT - A No. 11557 of 1989  RD-AH 17306 (6 October 2006)
Reserved on 15.9.2006.
Delivered on 6.10.2006.
Civil Misc. Writ Petition No. 11557 of 1989.
Rajnit Singh ....... Petitioner
Vice Chancellor, Chandra Shekhar Azad
University of Agriculture & Technology,
Kanpur & others ....... Respondents.
Civil Misc. Writ Petition No. 11064 of 1989.
Sudhir Prakash ....... Petitioner
Vice Chancellor, Chandra Shekhar Azad
University of Agriculture & Technology,
Kanpur & others ....... Respondents.
Hon'ble Ashok Bhushan, J.
Heard Sri Bhagwati Prasad Singh, learned counsel for both the petitioners and Sri V.B. Singh, learned Senior Advocate, appearing for respondents.
Both these writ petitions involve common questions of law and facts and are being decided by this common judgment. Facts and pleadings in both the writ petitions being almost similar, it is sufficient to refer pleadings in Writ Petition No.11557 of 1989 (Ranjit Singh Vs. Vice Chancellor, Chandra Shekhar Azad University of Agriculture & Technology, Kanpur & others).
The petitioner was appointed by order dated 3rd August, 1987 on the post of Motor Mechanic in the pay scale of 470-735 on purely temporary/ad-hoc basis. The said ad-hoc appointment of the petitioner was made on an application submitted by the petitioner dated 16th July, 1987 containing recommendation of one R.K. Srivastava, Dean & Head of Agricultural Engineering Department on the post of Motor Mechanic by the Vice Chancellor vide order dated 2nd August, 1987. The petitioner joined on 3rd August, 1989 and was working. The said ad-hoc appointment of the petitioner was terminated vide order dated 8th June, 1989 by the Vice Chancellor with immediate effect. A show cause notice was issued on 8th June, 1989 to Dr. R.K. Srivastava. In the notice it was mentioned that on the post on which the petitioners, Ranjit Singh and Sudhir Prakash, were appointed, appointments were already made in the year 1984 of Sri Dilsher Khan and Naseem Haider, who have been promoted on these posts. In the said show cause notice Dr. R.K. Srivastava was directed to show cause as to why salary paid to them be not recovered they having been appointed without there being any post. Dr. R.K. Srivastava submitted reply by letter dated 12th June, 1989 that person responsible for duplicate appointment on the post of Motor Mechanic are the Establishment Clerk, Office Superintendent of the office of the Director (Administration & Monetary). The petitioners by these writ petitions have challenged the order dated 8th June, 1989 terminating their services. By an amendment allowed on 2nd September, 2003, the petitioner has been permitted to add a relief for declaring the impugned order of termination dated 8th June, 1989 as illegal and void being retrenchment under Section 6-N of the U.P. Industrial Disputes Act, 1947. In the writ petition Dilsher Khan and Naseem Haider were impleaded as respondents No.3 and 4. Although in the writ petition it was stated that appointments of respondents No.3 and 4 were not valid and they were not appointed on the post of Motor Mechanic, no prayer was made for quashing their appointments. The respondents No.3 and 4 despite service have not appeared nor file any affidavit. One of the respondents, Naseem Haider already retired four years back. No interim order was passed in the writ petitions. The petitioners after their termination did not continue in the employment. One of the petitioners, Ranjit Singh also died on 8th April, 2003.
Sri Bhagwati Prasad Singh, learned counsel for the petitioners, challenging the order terminating services of the petitioners, submitted that termination of the petitioners' services was without any valid cause. He contended that termination of services has been made on the pretext that post of Motor Mechanic on which petitioners were given temporary/ad-hoc appointments are filled up, which not being a correct fact, the action of the respondents is arbitrary. He further contents that termination of petitioners' services is also in violation of the provisions of Section 6-N of U.P. Industrial Disputes Act, 1947, hence petitioners are entitled for reinstatement with all benefits. Reliance has been placed by the petitioners on the judgments reported in 1992 All.L.J. 1165; Krishna Kumar Dubey Vs. U.P. Food & Essential Commodities Corporation & another, 1992 All.L.J. 1166; Brijesh Kumar Srivastava vs. Director, Rajya Krishi Uptadhan Mandi Parishad, U.P., Lucknow and others, (1991)2 UPLBEC 1326; Belal Ibne Mohd. Siddiqui & others Vs. Chief Engineer, Rural Engineering Services, U.P. Lucknow and others, (2003)10 S.C.C. 283; Talwinder Singh Vs. PO Labour Court & another & (2003)8 S.C.C. 334; U.P. Drugs & Pharmaceuticals Co. Ltd. Vs. Ramanuj Yadav & others.
Sri V.B. Singh, learned counsel for the respondents, refuting the submissions of the petitioners, contended that petitioners were given ad-hoc and temporary appointments and they had no right to post. No error has been committed by the Vice Chancellor in terminating their services. He further submits that the posts on which the petitioners were given ad-hoc/temporary appointments were already occupied by respondents No.3 and 4 and there being no vacancy, which fact was detected by the respondents afterwards, the temporary appointment of the petitioners was rightly terminated. He submits that petitioners have no right to the post they being only temporary employees appointed without following the procedure prescribed in the statutory provisions. He placed reliance on the judgments of the Apex Court in (2006)4 S.C.C. 1; Secretary, State of Karnataka & others Vs. Umadevi and others, (2005)8 S.C.C. 264; U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & another, (1998)6 S.C.C. 549; Scooters India & others Vs. Vijai E.V. Eldred and 2006(110) F.L.R. 211; National Fertilizers Ltd. & others Vs. Somvir Singh. The Division Bench judgments of Delhi High Court reported in 2006-III Labour Law Journal 192; Delhi Jal Board Vs. Workmen of the erstwhile Delhi Water Supply & Sewage Disposal Undertaking and 2006-III Labour Law Journal 115; Sunil Kumar Vs. Delhi State Mineral Development Corporation & another, were also relied. 2005(8)
I have considered the submissions of counsel for both the parties and perused the record.
The first submission raised by counsel for the petitioners is that the services of the petitioners were arbitrary terminated since the reason which is sought to be given in the counter affidavit that the posts on which the petitioners were appointed were already filled in was incorrect and false. Learned counsel for the petitioner elaborating his submission contended that in the counter affidavit the appointment letters of respondents No.3 and 4, who are said to occupying the post on which the petitioners were appointed, have been filed as Annexure CA-1 to the counter affidavit. From Annexure CA-1to the counter affidavit, it appears that they were appointed in the pay scale of Rs.354-550 which is not the pay scale of Motor Mechanic. He further contents that the appointments of the petitioners were made as Mechanic and Collie and not as Motor Mechanic. From perusal of the order dated 4.4.1984 ( Annexure CA-1 to the counter affidavit), it is clear that appointments of respondents No.3 and 4 were made against the post of Mechanic in the pay scale of Rs.470-735 in the Motor Transport Department although the order mentioned that their salary be drawn in the pay scale of Rs.354-550. The posts against which their appointments were shown were posts of Mechanic for both respondents No.3 and 4. The petitioner in the rejoinder affidavit has brought on the record the pay bill of salary of respondents No.3 and 4 of March, 1986 and June, 1989. From the pay bill of March, 1986 it is clear that both respondents No.3 and 4 were drawing the salary in the pay scale of Rs.470-735 and their payments were made by the order of Director of Works of the University. The appointments of the petitioners were made by the Vice Chancellor of the University on ad-hoc basis and in the initial order of appointment it was mentioned that they are appointed against the post of Motor Mechanic. The consistent case of the respondents is that on the posts on which the petitioners were appointed, the appointments were already made in the year 1984, which is clear from the appointment order of respondents No.3 and 4. The submission that salary being paid under the orders of Director, hence the appointment of respondents No.3 and 4 cannot be treated in the Motor Transport Department, cannot be accepted. The appointment order filed as Annexure CA-1 to the counter affidavit clearly mentions the post of Mechanic in Motor Transport Department and the pay scale was also mentioned as 470-735 although respondents No.3 and 4 were ordered to draw salary in the pay scale of Rs.354-550 only. However, from the pay bill brought by the petitioner himself along with the rejoinder affidavit, it appears that in the month of March, 1986, i.e., before the appointment of the petitioners, the respondents No.3 and 4 were drawing the salary in the pay scale of Rs.470-735. In the counter affidavit it has also been mentioned that respondents No.3 and 4 were promoted, although no details about the promotion have been brought on the record, but fact remains that they were drawing salary of the pay scale of Rs.470-735 even before the appointment of the petitioners. One more fact, which is relevant to be noted, is that a show cause notice was issued to Professor R.K. Srivastava who recommended the appointment of the petitioners. The show cause notice clearly mentioned that on the posts on which the petitioners were appointed, the respondents No.3 and 4 were already appointed and posts were occupied, hence the appointment of the petitioners were wrongly made. Thus the reason, which is forthcoming from the counter affidavit for termination of temporary appointment of the petitioners is filling up of these two posts by respondents No.3 and 4. Holding of these posts by respondents No.3 and 4 finds support from the show cause notice given to Professor R.K. Srivastava. The reply to the show cause notice given by Professor R.K. Srivastava is also relevant. In his reply Professor R.K. Srivastava has not denied that the appointments of the petitioners are on different two posts, rather he has referred the appointment of the petitioners as duplicate appointments and he gave his defence that he was not aware of the fact that they were posted not in the charge of Transport Section and their salaries were not being drawn from Officer-in-Charge of the Transport. He also stated that these are the irregularities on account of which these duplicate appointments could be possible. In the reply which is filed as Annexure RA-1 to the rejoinder affidavit following was mentioned:-
"... I was given the charge of the Transport Section soon after I joined this University in April, 1986 and no old files containing such papers were handed over to my charge. Then the biggest anomaly was that if two persons had been appointed as Mechanics (on promotion) in 1984 why they were not posted under the charge of Officer-in-Charge Transport Section and why their salary was not drawn from that scheme and under the signature of the Officer-in-Charge Transport, who was the Drawing & Disbursing Officer for that scheme ? If the above irregularity had not been allowed to continue by the appointing authority and the Establishment Branch, the duplicate appointment would not have been possible. Thus, it is very clear that the persons responsible for these two duplicate appointments on the post of Motor Mechanics, Transport Section are the Establishment Clerk, Office Supdt. and the Director (Admn. & Mon.) of that time. Therefore, if the salary paid to Sh. Sudhir Prakash and Sh. Ranjit Singh on account of irregular appointment to the posts of Motor Mechanics in Transport Section is to be recovered, it should be done from the persons holding the above mentioned posts in the Office of the Director (Admn. & Mon.) at the time of these irregular appointments, but not from the undersigned in view of the facts mentioned above."
From the above reply given by Dr. R.K. Srivastava who recommended the ad-hoc appointment of the petitioner, it is thus clear that the University treated these appointments of the petitioners as irregular appointment being made in ignorance of the fact that these two posts were already filled in. The petitioners being only appointed on temporary vacancy, they have no right to the posts and the reason given in the counter affidavit for their termination cannot be said to be pulpably unsound or arbitrary. On a pointed query asked from the petitioners' counsel that after termination in June, 1989 whether any fresh appointment has been made on the post of Motor Mechanic in the Transport Department of the University, the answer of both the counsel was in negative. Thus this fact also justify the stand of the University that the post on which the petitioners were appointed were the posts which were already occupied by two incumbents, i.e., respondents No.3 and 4 and the University could not have made fresh appointment. Thus the submission of the petitioners that the termination of the petitioners was arbitrary since it was made on false and incorrect reason cannot be accepted. The petitioners being temporary employees, who were appointed merely on the application submitted by them and recommended by Professor R.K. Srivastava, they did not acquire any right to hold the post. The appointments of the petitioners having been made without giving any opportunity of competition to any other persons, no right has been acquired by the petitioners to the post.
The next submission of counsel for the petitioners is that the termination is illegal and violative of Section 6-N of the U.P. Industrial Disputes Act, 1947. The petitioners' counsel submits that petitioners having worked for more than 240 days in a calendar year their termination was violative of Section 6-N. It is relevant to note that the writ petition was not founded by the petitioners when it was filed on the ground of violation of Section 6-N of U.P. Industrial Disputes Act, 1947. The ground taken in the writ petition was that the termination was made without giving any opportunity and the order has been passed in violation of the principles of natural justice, further the respondents No.3 and 4 were appointed without they fulfilling the qualification and they were wrongly given promotion. It was only in the year 2003 when the petitioners moved application for amendment in the writ petition adding grounds No.6 and 7 and relief No. IV and V to the writ petition. It is well settled that when rights and obligations are sought to be enforced under U.P. Industrial Disputes Act, 1947, the same has to be invoked in accordance with the provisions of the said Act. For rights and remedy under the U.P. Industrial Disputes Act, 1947 the appropriate forum is raising of an industrial dispute. The High Court normally does not entertain writ petition when violation of provisions of U.P. Industrial Disputes Act, 1947 is raised and relegates the petitioner to seek remedy under the U.P. Industrial Disputes Act, 1947. When the writ petition was filed, the writ petition was not founded on the said ground. Had the petitioner founded the writ petition on the ground of violation of the provisions of U.P. Industrial Disputes Act, 1947, the Court might have relegated them to seek the remedy under the U.P. Industrial Disputes Act, 1947. On the basis of amendment made in the year 2003, I am not inclined to entertain the plea of the petitioners raised in the writ petition for challenging the order of termination on breach of Section 6-N. The judgment relied by counsel for the petitioner in Krishna Kumar Dubey's case (supra) do not lay down the proposition that High Court is obliged to consider the breach of Section 6-N in a writ proceeding. The Apex Court granted relief in the said case without expressing any opinion as to whether the High Court rightly or wrongly relegated the employee to invoke the provisions of U.P. Industrial Disputes Act, 1947, which is clear from paragraph 3 of the said judgment. Paragraph 3 of the said judgment is extracted below:-
"The petitioner has been working under the respondent Corporation as a temporary employee for over three years. It is the case of the appellant that from time to time his services were discontinued for a day or two with a view to braking the continuity of his service. It, however, appears that he has continuously worked for more than 240 days. It is not disputed that the respondents have terminated his services without complying with the provision of Section 25-F of the Industrial Disputes Act, 1947. The High Court took the view that the appellant had an efficacious alternative remedy before the Industrial Tribunal and, accordingly, dismissed the writ petition. It is not necessary for us to consider whether the High Court was justified in dismissing the writ petition on that ground or not, but the fact remains that the appellant had worked continuously for more than 240 days and so, his services could not be terminated without complying with the provision of Section 25-F of the Industrial Dispute Act."
The Apex Court in a recent judgment reported in (2004)4 S.C.C. 268; U.P. State Bridge Corporation Ltd. & others Vs. U.P. Rajya Setu Nigam S. Karamchari Sangh has observed that when rights and obligations sought to be enforced under the U.P. Industrial Disputes Act, 1947, then the only remedy available to the claimant is to get adjudication under the U.P. Industrial Disputes Act, 1947. Paragraphs 11 and 12 of the said judgment are quoted below:-
"11. We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as UP.IDA, 1947. The rights and obligations sought to be enforced by the respondent Union in the writ petition are those created by Industrial Disputes Act. In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke it was held that when the dipuste relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act. This was because the Industrial Disputes Act was made to provide
"a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill-afford. The procedure followed by civil courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and remark the contracts, settlements, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them".
12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner."
Moreso this Court has examined the termination of ad-hoc/temporary appointment of the petitioner on merits and has found that there was valid reason for such termination. Further while considering the concept of public employment the Constitution Bench of the Apex Court in Secretary, State of Karnataka's case (supra) has sounded caution for considering the cases of temporary/ad hoc appointment made de hors the rule. Following was observed in paragraph 4:-
"4. ... It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established..."
Further it was observed in paragraph 13:-
"13. ... It cannot also be forgotten that it is not the role of the courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution..."
As observed above, the petitioners' appointments being temporary appointment made without following any procedure only on simple application, they cannot be held to have acquired any right to the post and the termination of their services by the University cannot be said to be arbitrary warranting interference by this Court under Article 226 of the Constitution of India.
The judgment of this Court in Brijesh Kumar Srivastava's case (supra) relied by counsel for the petitioner was a case in which writ petition was filed for granting continuity of service and to pay salary. The Court exercised its discretion in deciding the writ petition on merits after hearing both the parties. The case was on its own facts and is quite different from the facts and circumstances of the present case. The case of Belal Ibne Mohd. Siddiqui (supra) was also a case where services of work charge employees were terminated. The writ petition was not allowed on the ground of violation of any provision of U.P. Industrial Disputes Act, 1947. The judgments of the Apex Court in Talwinder Singh's case (supra) and in U.P. Drugs & Pharmaceuticals Co. Ltd's case (supra) were the cases which arose from the award of the Labour Court. The provisions of the U.P. Industrial Disputes Act, 1947 were invoked in those cases by seeking the remedy before the forum created under the U.P. Industrial Disputes Act, 1947 and they can have no application in the facts of the present case.
In view of the foregoing discussions, the petitioners have not made out any case for grant of relief as prayed for in the writ petition.
Both the writ petitions are dismissed.
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