Gopal Krishan Vyas, J.@mdashHeard learned Counsel for the parties.
In all the abovementioned writ petitions, the petitioners are challenging the impugned order dated 14.12.2006 passed by the Vikas Adhikari, Panchayat Samiti, Arnod, whereby the services of the petitioners were terminated.
Brief facts of the case are that the petitioners were initially appointed on daily wage basis for 90 days vide order dated 1.1.1996 and they were allowed to continue on their post. While working on the post, they were provided appointment vide order dated 5.6.1998 on probation for two years in the pay scale of Rs. 750-940 by the Vikas Adhikari, Panchayat Samiti, Arnod in pursuance of the order passed by the Director on 28.2.1996 and order dated 5.5.1998.
2. The services of the petitioners were regularized on the post of Handpump Mistry as per the decision of the Administrative & Establishment Committee of Panchayat Samiti, Arnod vide order dated 16.2.2002 in the pay scale of Rs. 2550-3200.
3. The State Government issued direction vide order dated 30th August, 2002, to the Vikas Adhikari, Panchayat Samiti, Arnod, Distt. Chittorgarh, to terminate the services of the petitioners after making compliance of section 25-F and G of the Industrial Disputes Act, 1947 (for short hereinafter referred to as "the Act") on the ground that appointment of the petitioners was irregular.
4. In compliance of the aforesaid order passed by the Panchayati Raj Department, Govt. of Raj. dt. 30.8.2002, the services of the petitioners were terminated after making compliance of section 25-F of the Act vide order dated 25.9.2002. Against the said termination order, a joint writ petition was preferred by them before this Court and the said writ petition was registered as SBCWP No. 4530/2002 but the Co-ordinate Bench of this Court passed dismissed the said writ petition vide order dated 6.2.2003 with liberty to invoke remedy under the Industrial Disputes Act against the termination orders dated 30.8.2002 and 25.9.2002.
5. Petitioners raised industrial dispute before the Conciliation Officer but after failure of the proceedings, the appropriate Government referred the dispute of the petitioners with regard to termination of their service from the post of hand-pump mistry vide order dated 5.8.2004 to the Judge, Labour Court, Bhilwara. After reference, the Judge, Labour Court, Bhilwara, proceeded to decide the reference made by the appropriate Government against the termination orders dt. 30.8.2002 and 25.9.2002 passed by the Vikas Adhikari, Gram Panchayat, Arnod.
6. In the reference, after due trial, on the basis of evidence led by the parties, the Judge, Labour Court, Bhilwara, passed an award on 26.5.2006, whereby the order of termination of the petitioner w.e.f. 30.8.2002 and 25.9.2002 were set aside and directions were issued to reinstate them in service with continuity and 50% beck wages w.e.f. 15.12.2004.
7. In compliance of aforesaid award passed by the Judge, Labour Court, Bhilwara, the petitioners were reinstated in service vide order dated 14.12.2006 but on the same day, notices under section 25(a) and (b) of the Act were issued to the petitioners, whereby their services were again terminated.
8. In all the above writ petitions, the petitioners are challenging the validity of the order dated 14.12.2006 passed by Vikas Adhikari, Panchayat Samiti, Arnod, Distt. Chittorgarh, whereby the services of the petitioners were terminated while giving notice under sections 25(a) and (b) of the Act. Learned Counsel for the petitioners has vehemently argued that after marathon of litigation, the petitioners'' case was decided by the Judge, Labour Court, Bhilwara, in which an order was passed to reinstate the petitioners in service with continuity. Meaning thereby after award, the petitioners were required to be treated as regular employee because their services were regularized vide order dated 16.2.2002 by the Vikas Adhikari.
9. The Co-ordinate Bench of this Court, while issuing notice to the respondents, passed an order on 11.4.2007 whereby the order of termination was stayed and stay order passed on 11.4.2007 is still in existence.
10. Learned Counsel for the petitioners submits that, although the petitioners were reinstated in service in compliance of award vide order dated 14.12.2006 but on the same day, an illegal order was passed, whereby the services were again terminated. It appears from the conduct of the respondents that on one hand, order of reinstatement was passed and on the other, another order was passed mala fidely where by while making compliance of the provisions of section 25-F of the Act, terminated the service of the petitioners. In view of the above, it is a clear cut case of mala fide exercise of power by the respondent Panchayat Samiti, Arnod, therefore, in view of the judgment rendered by the Hon''ble Supreme Court in the case of
11. Learned Counsel for the petitioners further argued that in the Rajasthan Panchayati Raj Rules, 1996, promulgated by the State, the post of handpump mistry was included in the Schedule vide notification dated 5.7.2006. Meaning thereby the; post of handpump Mistry is in existence upon which the services of the petitioners can be regularized.
12. Learned Counsel for the petitioners has vehemently argued that due to tenure of service rendered by the petitioners, they become entitled for regularization in view of para. 53 of the judgment rendered by the Hon''ble Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi, 2006 (109) FLR 826 (SC) therefore, the order impugned dated 14.12.2006 may be quashed and the respondents may be directed to consider the cases of the petitioners for the purpose of regularization in view of above judgment of Uma Devi (supra).
13. Per contra, learned Counsel appearing on behalf of State-Panchayati Raj Department opposed the prayer and submitted that after due compliance of the award passed by the Judge, Labour Court, Bhilwara, the petitioners'' services were terminated while following the provisions of Industrial Disputes Act, therefore, it cannot be said that the termination order dated 14.12.2006 under challenge in all above writ petitions, is illegal or contrary to the provisions of law. As per respondents, the appointment itself was illegal and contrary to the rules because the post of handpump mistry was not in existence, therefore, benefit of regular appointment was totally illegal and when above fact came to the knowledge of the State Government, the appropriate directions were issued by the State to the Panchayat Samiti, Arnod for terminating the services of the petitioners, who were appointed contrary to law, which is back door entry, therefore, no case is made out for interference in view of the fact that appointment itself was contrary to law because the petitioners were engaged in a Scheme as handpump mistry but that post was not even in existence in the rules on the date of appointment on contract basis, therefore, the writ petitions may be dismissed.
14. After hearing learned Counsel for the parties, it emerges from the facts that alter providing regular appointment, services of the petitioners were terminated as per direction of the State Government but upon raising industrial dispute, the petitioners were reinstated in service by the Judge, Labour Court, Bhilwara vide award-dated 26.5.2006 with continuity of service by following order:
15. In compliance of above award passed by the Judge, Labour Court, Bhilwara, the Panchayat Samiti, Arnod reinstated the petitioners vide order dated 14.12.2006 but on the same day, an order was issued by the Vikas Adhikari, Panchayat Samiti, Arnod, Distt. Chittorgarh, whereby the petitioners'' services were terminated. Meaning thereby, the respondents took decision that these petitioners should not be allowed to work on the post of handpump mistry in the Panchayat Samiti inspite of the fact that their services were regularised, therefore, the action taken for terminating their services soon after the compliance of the award, is not sustainable in law in view of the judgment, rendered by the Hon''ble Supreme Court in the case of Dhari Gram Panchayat (supra), the order of termination is not sustainable in law. In the aforesaid judgment, in which following adjudication was made by the Hon''ble Supreme Court, which reads as under:
"The services of ten clerks working in the Octroi section of the Gram Panchayat of Dhari were terminated by notices dated September 25, 1967 with effect from November 1, 1967. An industrial dispute was referred by the Government of Gujarat to the Special Labour Court. By an award dated November 13, 1968, the Special Labour Court directed the reabsorption of the ten clerks in future vacancies. The workmen filed a writ petition in the High Court of Gujarat. By a consent order dated June 18, 1969 made in the writ petition, the ten workmen were directed to be reinstated and an amount equivalent to two-thirds of their back wages was also directed to be paid to them. The workmen were reinstated on July 1, 1969. But later on, the same day, they were retrenched from service. The workmen questioned the retrenchment and the dispute was once again referred for adjudication to the Special Labour Court. This time an objection was raised by the Gram Panchayat that the Octroi Department of the Panchayat was not an industry within the meaning of section 2(j) of the Industrial Disputes Act. The Labour Court found on merits that the action of the Panchayat was mala fide but all the same held that the reference was incompetent as the Octroi Department was not an industry. On a writ petition filed by the workmen, the High Court upheld the finding that the action of the panchayat if was mala fide. The High Court also found that the Octroi Department was an industry within the meaning of section 2(j) of the Industrial Disputes Act. On those findings, the High Court allowed the writ petition and directed reinstatement of the workmen with back wages. In this civil appeal under Article 136 of the Constitution, it was argued on behalf of the Panchayat that levy and collection of octroi duty was a sovereign function and, therefore, the Octroi Department of the Panchayat was not an industry within the meaning of section 2(j) of the Act. We do not propose to express any opinion on this question since we are of the view that on the finding that the action of the Panchayat was mala fide, the High Court could directly interfered with the retrenchment of the workmen under Article 226 of the Constitution if the workmen had straightaway approached the Court without raising an industrial dispute. Merely because they raised an industrial dispute and the Labour Court took the view that the Octroi Department was not an industry, the workmen are not disentitled to the relief ultimately given to them by the High Court. We, therefore, uphold the judgment of the High Court. In regard to back wages, having regard to the long period that has elapsed since the resolution of retrenchment, the fact that the workmen appear to have been gainfully employed in the meanwhile and the poor finances of the Panchayat regarding which we are satisfied, we think that in the peculiar circumstances of the case, the requirements of justice will be sufficiently met if we give a direction that each of the workmen shall be paid one-third of the back wages upto date and that they shall be reinstated forthwith. They will be entitled to full wages from September 1, 1987. In other respects, the judgment of the High Court is confirmed. The workmen are entitled to their costs."
16. In view of the above, this Court is of the opinion that/there was mala fide intention behind the termination order because on the same day of termination, the petitioners were reinstated in service even though the post of handpump mistry was included in the Service Rules by the Panchayati Raj Department, Govt. of Rajasthan. In view of the above, while following the aforesaid judgment, it is held that due to mala fide reason, the decision was taken to remove the petitioners from service, therefore, the writ petitions are allowed, the order of termination dt. 14.12.2006 is hereby set aside. The petitioners are in service in pursuance of the interim order passed by this Court, therefore, the respondents are directed to consider their cases for regularization on the post of handpump mistry as per the directions given by the Hon''ble Supreme Court, in para. 53 of the judgment in Uma Devi (supra) within a period of three months from the date of receiving certified copy of this order A copy of this order be also placed in all the files.
