New Okhla Industrial Development ... vs State Of U.P. & Others
2017 Latest Caselaw 2905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - A No. - 33689 of 1995
 

 
Petitioner :- New Okhla Industrial Development Authority
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- P.N. Roy,A.Khare,R.W. Rai,Ramendra Pratap Singh,U.S.Awasthi,Vivek Chaudhary
 
Counsel for Respondent :- S.C.,K.R.C.Singh,R.P.Singh,S.Kumar,S.S.Nigam
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard Sri Ramendra Pratap Singh, learned counsel for the petitioner.

Three counter affidavits have been filed on behalf of the respondent nos. 4, 7 and 8. No one has appeared on their behalf. The matter has been taken up in the revised call.

This writ petition questions the correctness of the judgment and order of the State Public Services Tribunal, Lucknow, whereby the Tribunal has rejected the petition filed by the petitioner-Authority and has arrived at the conclusion that the contesting respondents had been engaged as daily wage employees and having worked with the petitioner for more than 240 days, they were entitled to be considered for regularization, in view of the law laid down in the case of State of Haryana and others Vs. Piara Singh 1922 (4) SLR 770. The claim petition was disposed of with a direction that since regularization can be considered if there are vacancies and since there was no indication of any vacancy, therefore, the regularization claim of the petitioner cannot be accepted, but at the same time the authority was directed to pay the same pay scale as was being given to the regular employees.

The present writ petition was entertained on the ground raised by the petitioner-Authority that the claim petition was not entertainable before the Tribunal which has no jurisdiction to adjudicate any such dispute. A learned Single Judge of this Court on 28th July, 1998 passed the following interim order :-

"A very interesting question has been canvassed by Sri A.K. Roy, learned counsel for the petitioner in Writ Petition  No. 33687 of 1995 and Sri Ashok Khare, learned counsel for the petitioner in Writ Petition No. 33689 of 1995 to the extent that by virtue of Section 1 sub Section (4) of U.P. Public Services (Tribunal) Act, 1976 the workman is excluded from the application of sections other than 1, 2 and 6. Therefore, the workman cannot maintain a reference under Section 4 of the said Act. The other point raised is as to whether signing of the reply by the Representing Officer would be rejected on the ground that the employer being a Corporation in view of Clause (10) of Section 5 only the Executing Officer or the Secretary, can sign such reply and therefore, the reply so signed by the Representing Officer is to be ignored.

After having heard to the learned counsel for the petitioner, it appears that raises substantial question of law which requires determination in the present case. From a perusal of the order of the Tribunal, it appears that it has not gone into question as to the maintainability of reference in view of Section 1(4)(d) of the said Act, only on the ground that the reply having been signed by the law Officer, being the Representing Officer, cannot be accepted and had ignored the same. Thus, it appears that the order passed by the Tribunal suffers from patent infirmity which is also apparent from the fact as contended by the learned counsel for the parties Sri Khare and Sri Roy, that in similar case learned Tribunal had on earlier occasion rejected such a reference on the said very question which is sought to be explained in this order impugned that the order passed by the other Bench of the Tribunal is not binding on him.

For all these reasons it is a fit case where the question should be gone into and the impugned order of the Tribunal should be kept in abeyance. Accordingly, learned counsel for the petitioners are directed to serve the respondents by the Registry through registered post with A.D. within a period of one week. Office shall effect service on the said respondents within a period of two weeks thereafter. The office shall submit a report for service on the next date of listing. In addition to the normal mode of service, the petitioner shall also serve the said respondents personally as well as through registered post A.D within a period of two weeks thereof. Office will hand over necessary notices in duplicate to the learned counsel for the petitioner within a period of one week. The petitioner shall also file an affidavit of service on the next date of listing. In default of any of the steps to be taken by the petitioner, in the manner indicated above the writ petition shall stand dismissed.

In the fact and circumstances of the case, as stated above, let the operation of the impugned order dated 30.08.1995 passed in Claim Case No. 1197 of 1994 and Claim Case No. 1198 of 1994 both passed by the U.P. State Public Services Tribunal, Lucknow impugned in these two writ petitions, shall remain stayed until further orders.

List in the week commencing 05.10.1998."

Learned counsel for the petitioner contends that the contesting respondents were engaged through a contractor for discharging the work that was being assigned on daily wage basis. They were not engaged by the petitioner-Authority and, therefore, the alleged placement of their names in the muster roll does not confer any right on them so as to claim regularization or any other engagement in the authority. It is also the contention of the petitioner that neither any letter of appointment was issued nor any engagement letter exists on record that may establish employment relationship of the respondents with the petitioner.

Learned counsel for the petitioner has relied on the Division Bench judgment in the case of Noida Vs. State Public Services Tribunal, 2007 (6) ADJ 83 (DB) to substantiate the aforesaid submission that the claim petition was not maintainable before the Tribunal.

The writ petition makes a clear averment to the effect that in the absence of any engagement or employment, the petitioners cannot claim any such continuance in service and accordingly, the claim petition before the Tribunal was not maintainable. The three respondents who have filed the counter affidavits, have denied the said allegations but nothing has been brought on record by them so as to indicate their direct engagement by the Authority in any capacity whatsoever.

We have considered the submissions raised by the learned counsel for the petitioner and have also gone through the counter affidavits filed on behalf of the three respondents referred to hereinabove. We do not find any evidence which may indicate the relationship of employer and employee between the petitioner-Authority and the contesting private respondents. Secondly, the respondents appear to have made a representation, copy whereof is Annexure-10 to the writ petition. The said representation categorically admits that they were engaged on contract basis. This, therefore, fortifies the stand of the petitioner-Authority that they had been engaged on contractual basis through the contractor who had been awarded the contract for daily labour. At the best, the respondents were workmen who could have raised an industrial dispute if the facts so permitted. This clinching fact, therefore settles the issue which has completely been overlooked by the Tribunal.

As the Tribunal has proceeded on the premise that the counter affidavit has not been filed by the Competent Authority of the petitioner's organization, we may put on record that every Tribunal or Court has the obligation to first decide its own jurisdiction to proceed in the matter. The information having been placed before the Tribunal about the status of the employment of the private respondents, the Tribunal was under an obligation to consider this issue and not discard the same merely on the ground that the petitioner-Authority had not filed the affidavit through some Competent Authority. The Tribunal committed a manifest error in rejecting the defense and proceeding to assume jurisdiction in the matter which it otherwise did not possess and which view now stands fortified by the Division Bench judgment as cited on behalf of the petitioner referred to hereinabove.

Since, the Tribunal did not have any jurisdiction to entertain the said claim petition, the relief of extending equal pay for equal work as regular employees was absolutely beyond the authority of the Tribunal.

The writ petition, therefore, deserves to be allowed and is, accordingly, allowed.

The impugned judgment and order of the Tribunal dated 30th August, 1995 is hereby quashed.

Order Date :- 2.8.2017

Sumit S