Court No. - 33
Case :- WRIT - A No. - 62846 of 2015 Petitioner :- Balram Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Manish Kumar Tiwari Counsel for Respondent :- C.S.C.,Siddhartha Singh
Hon'ble Ashwani Kumar Mishra,J.
While entertaining the writ petition, following orders were passed in the matter on 17.11.2015:-
"Learned counsel appearing for the petitioner submits that the observation contained in the order impugned that the petitioner was not in employment in the year 1994 and 1999 is unsustainable inasmuch as against the illegal termination of his services, an industrial dispute was raised, which resulted in an award being passed in favour of workman/petitioner, directing reinstatement with continuity of service, which had attained finality, and therefore, the petitioner would be treated in law to be in service in the year 1994.
Matter requires consideration.
Notices on behalf of all respondents have been accepted by learned Standing Counsel. He prays for and is granted six weeks' time to file counter affidavit. Petitioner will have two weeks' time to file rejoinder affidavit, thereafter.
List thereafter."
Counter affidavit has been filed opposing the writ petition on the ground that the award was ex-parte and that no material existed before the Labour Court to hold that the petitioner has worked for 240 days in a calendar year. It is also stated that the petitioner has worked as a semi skilled labour. It is also urged that there exists no provision for regularisation in the respondent Council of Sugar Cane Research.
I have heard learned counsel for the petitioner and Sri Siddharth Singh for the respondents.
Petitioner was employed on 8.11.1989 in Sugar Cane Research Centre, Kudaghat, Gorakhpur. He is presently working as Lab Assistant in the same Sugar Cane Research Centre. He has approached this Court with the grievance that though petitioner has continued in the employment of respondent since 27 years but his claim for regularisation has not been considered. It is stated that while in employment of the respondent, petitioner was terminated from service on 10.5.1991 by the oral order of the competent authority. Aggrieved by such action, petitioner approached the Labour Court in Adj. Case No. 219 of 1992. Ultimately an award came to be passed by the Presiding Officer, Labour court holding petitioner's termination to be illegal an directing his reinstatement alongwith continuity of service. This award dated 15.2.2000 was challenged before this Court in Writ Petition No. 27836 of 2001 wherein the award was modified to the extent that 50% back wages were allowed to the workman vide order dated 19.7.2006. However, the remedy of continuity in service alongwith reinstatement was maintained. Respondents have challenged the order of this Court dated 19.7.2006 before the Supreme court in Special Appeal (Civil) No.17025 of 2006, which was dismissed on 30.10.2006. It is, therefore, clear that award of labour court granting reinstatement alongwith continuity of service since 1989 has attained finality. The only question which requires consideration in the facts of the present case is as to whether petitioner's services are liable to be regularised in the employment of the U.P.Cane Research Council or not?
It transpires that the petitioner approached this Court by filing Writ Petition No. 29790 of 2015 in which a direction was issued to consider petitioner's claim for regularisation. The officiating Director by the order impugned has rejected such claim of petitioner, observing that while proceedings for regularisation were under taken in the Council but the petitioner was not in the employment then and as such his claim for regularisation was not considered. Such exercise apparently was undertaken in 1994 and 1999.
So far as the observation in the order impugned that the petitioner was not in employment in 1994 and 1999 is concerned, such observations are clearly unsustainable for the simple reason that petitioner's services were terminated in the year 1991 itself. The Labour Court ultimately has answered the reference in favour of the workman by granting him benefit of continuity in service. Such award has attained finality upto the Supreme Court. In view of such admitted position, it cannot be said that the petitioner was not in employment in 1994 or in 1999 when claim of regularisation of daily wagers was considered.
Having continued to work from 1989 onwards, petitioner's services were liable to be regularised in accordance with the regularisation rules.
Sri Siddharth Singh, learned counsel for the respondent submits that there exists no specific rule for regularisation in respect of employees of U.P. Sugar Cane Research Council, and therefore, such relief cannot be granted to petitioner. It is also stated that there exists no vacancy as of now.
Admittedly, U.P. Sugar Cane Research Council is a society established by the State Government vide Government Order dated 15.12.1976. The constitution of the Society has been placed before this Court, as per which Commissioner and Secretary of Sugar Industry happens to be its ex-officio Chairman whereas Cane Commissioner U.P. and other State authorities are members of its Board.
Rules and Regulations of the U.P. Sugar Cane Research Council would clearly go to show that there exists deep and pervasive control over the affairs of society by the State Government and the society answers the description of 'State' within the meaning of Article 12 of the Constitution of India. The Rules and Regulations relating to employees of the Council have also been placed before the Court. Clause-23 of the Rules specifically provides that in respect of matter which are not specifically provided for in the employees service recruitment rules of the Council, the provisions relating to government servant shall be applicable upon the employees of the Council concerned. The provisions contained in Clause-23 would clearly lead to an inference that the rules framed by the State Government for regularising the services of its employees would ipso facto apply in the event any specific rules for regularisation are not framed by the Council. The State Government has framed regularisation rules of 2001 and the petitioner is found to be in employment of the Council both on the cut off date as also on the date when the Regularisation Rules, 2001 itself was enforced. Subsequent rules have also been framed in the year 2016 by amending the cut off date.
Having allowed the petitioner to continue for the last more than 30 years, the respondents cannot be permitted to deny benefit of regularisation to him for the reasons recorded in the order impugned.
Consequently, this petition succeeds and is allowed. A writ of mandamus is issued directing respondent no. 2 to pass a fresh order in respect of petitioner's claim for regularisation, keeping in view the observations made above, within a period of three months from the date of presentation of copy of this order. All consequential benefits shall be extended to petitioner, accordingly.
Order Date :- 23.9.2021 n.u.