Heard Sri V. Singh, learned counsel for the petitioner and Sri Ganesh Prasad, who has put in appearance on behalf of respondents no. 2 and 3.
Factual matrix of the case, giving rise to the dispute, are as under:
The petitioner was appointed as peon on temporary basis on 1.3.1999 in Nagar Panchayat Badapur on a vacancy caused due to death of Nawab Khan. The said appointment of the petitioner was made by the Executive Officer after approval by the Chairman vide order dated 30.3.2000. His services were regularized and he was given status of permanent employee. The Chairman, Nagar Panchayat vide order dated 9.5.2003 placed the petitioner under suspension in contemplation of a departmental enquiry. A charge sheet was issued levelling the following three charges.
1.that his appointment was totally illegal as it was in violation of the Government Order dated 7.5.1992.
2.that he was not discharging his duties sincerely and responsibly and has no control over his subordinate Safai Karmchari.
3.that he was in habit of violating the orders of his superior officers.
An Inquiry officer was appointed, who started the enquiry and subsequently new inquiry officer was appointed. The newly appointed inquiry officer without conducting any order enquiry in as much neither any date or time was fixed nor the petitioner was afforded any opportunity to examine or cross-examine any witness before the inquiry officer, even oral examination of any witness was not done by the inquiry officer nor the department produced any evidence in support of the charges, the copy of the enquiry report was also not supplied to the petitioner and vide order dated 8.8.2003, his services were terminated. The petitioner went up in appeal before the Commissioner which was also dismissed vide order dated 24.09.2005. The petitioner approached this Court by filing Writ Petition no. 69395 of 2005 which was dismissed on 9.11.2005 with liberty to avail the alternative remedy before the Labour Court. The dispute was referred to the Labour Court and was registered as Adjudication Case no. 22 of 2007. After respective pleadings and evidence led by the parties, the Presiding Office, Labour Court found that in so far as charges no. 2 and 3 are concerned, they are not proved against the petitioner-workman. However, in so far as charge no. 1 is concerned, the appointment being illegal in violation of the Government Order, the Labour Court returned the finding that since the appointment has been made in violation of the Government hence it was illegal and the petitioner has no right to continue on the post but considering the facts that he was given appointment, the Presiding Officer, Labour Court awarded a compensation of Rs.30,000/-.
It is contended by the learned counsel that the petitioner could not have been dismissed on the ground that his appointment was in violation of the Government Order dated 7.5.1992. Making a reference to the copy of the Government Order, which has been filed as Annexure '1' to the counter affidavit, it is submitted that the said Government Order did not prohibit any appointment rather it provided that before appointing a person from outside on the vacancy being caused, the daily wage employees who were working on 11.10.1989 and have completed three years service should be considered for appointment on such regular vacancy. It is further contended that the petitioner was initially appointed on daily wage basis and then he was given temporarily appointment on the vacancy caused due to death of one Nawab Khan and thus, it cannot be said that his appointment was in any manner in violation of the Government Order dated 7.5.1992. Learned counsel for the petitioner has further pointed out that no such list of temporary employees was brought on record to demonstrate that any temporary employee was working in the Nagar Panchayat who could have been appointed in view of the said Government Order.
A counter affidavit has been filed on behalf of Nagar Panchayat. The fact that the petitioner was working on daily wage basis and was subsequently appointed temporarily on the vacancy caused due to death of Nawab Khan and was made permanent has not been denied in the counter affidavit. What has been stated in the counter affidavit is that the appointment of the petitioner was made against the Government Order dated 7.5.1992 hence is illegal and his services has rightly been dismissed. Even in the counter affidavit, no material has been brought on record that any daily wage employee was available at the time the petitioner was given appointment, who had better claim or ought to have been appointed in terms of the Government Order.
Once that is factual position, in the absence of any material to demonstrate that the appointment of the petitioner was made in violation of the Government Order, his services were not liable to be dismissed just by saying that appointment was in violation of the Government Order. The Presiding Officer, Labour Court has failed to address himself to the said issue and in the circumstances, the impugned award is not liable to be sustained and is hereby quashed. The writ petition stands allowed and the petitioner shall be entitled to reinstatement with full back wages and all other consequential benefits.
Order Date :- 1.2.2012 Dcs