Jai Pratap Mishra vs State Of U.P. And 2 Others
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Allahabad High Court

Jai Pratap Mishra vs State Of U.P. And 2 Others on 23 May, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:88699-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 475 of 2025
 
Appellant :- Jai Pratap Mishra
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Krishna Dev Mishra,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Vimlesh Kumar Rai
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Praveen Kumar Giri,J.

1. This appeal arises out of an order passed by the learned Single Judge in Writ A No. 16312 of 2018, whereby claim of the appellant for regularisation came to be rejected after noticing the recital contained in the order impugned dated 27.4.2018, as per which appellant had not worked from 16.2.2010 to 29.2.2012 and again had not worked from 1.6.2015 onwards. Learned Single Judge has opined that for such reasons, the appellant was not entitled to be regularised.

2. The writ petition before the learned Single Judge was virtually the fourth round of litigation before this Court. It would be necessary to refer to some of the background facts. The petitioner had earlier filed Writ A No. 5811 of 2016 which was disposed of on 12.2.2016. Facts in respect of present cause have been elaborately noticed and are reproduced hereinafter :

"Petitioner claims to have been appointed as a Watchman in the respondent Nagar Nigam in December, 1987. His services were terminated on 1st March, 1990, in respect of which an industrial dispute was raised by him, which was registered as Adjudication Case No.15 of 1992, in which an award was made by the Labour Court holding the termination of petitioner w.e.f. 1.3.1990 to be bad, and he was directed to be reinstated as a daily wage Watchman. Continuity of service from 1.3.1990 till the date of award was also granted. The award was challenged by the respondents by filing Writ Petition No.16919 of 2007, which was dismissed by this Court. A special leave petition was also preferred, which came to be dismissed on 11th October, 2007, and consequently, the award of Labour Court attained finality. It seems that the respondents even thereafter did not reinstate the petitioner, and consequently application under Section 6(H)(1) of the U.P. Industrial Disputes Act, 1947 was filed for computation of wages, which was allowed, and again a writ petition filed by the respondents was dismissed. Petitioner, thereafter, was reinstated vide order dated 10.1.2012. In respect of his claim with regard to grant of benefits in terms of the order of the respondent for payment of salary in the requisite pay scale, a claim was raised, which was directed to be considered. The Corporation ultimately has rejected petitioner's claim vide order dated 16.9.2014, in which it has been noticed that since petitioner's services have not been regularized, as such, the benefits of a regular employee are not available to the petitioner. The order dated 16.9.2014 is under challenge in the Writ Petition No.65206 of 2014.

During the pendency of the said writ petition, the petitioner has preferred present writ petition for a direction upon the respondents to regularize petitioner's services on the ground that petitioner's working in law would be treated to be uninterrupted as a daily wage employee since December, 1987, and therefore, petitioner is liable to be regularized in view of the office memorandum dated 26th April, 2011, issued by the Managing Director of the Corporation. "

3. Thereafter, the appellant's claim was rejected by Jal Nigam vide order dated 7.4.2016. This order was again put to challenge before this Court in Writ A No. 18909 of 2016 which was allowed on 15.3.2018. A direction was again issued for considering appellant's claim for regularisation. Pursuant to such direction, the order impugned is passed.

4. Learned counsel for the appellant argues that the appellant was illegally terminated from the employment of the U.P. Jal Nigam on 1.3.1990. This termination was the subject matter of challenge before the Labour Court, wherein the termination was found illegal by the Labour Court and relief of reinstatement was granted. The award was challenged by filing Writ A No. 16919 of 2007 which was dismissed by the High Court. Special Leave Petition was also dismissed by Hon'ble the Supreme Court on 11.10.2007. The award granting reinstatement to the appellant thus attained finality. Despite such fact, the appellant was not reinstated in service. Orders were thereafter passed under Section 6(H)(1) of the Uttar Pradesh Industrial Disputes Act, 1947.

5. A writ petition filed by the employer against the such order was also dismissed. It has been clearly noticed by this Court in Writ A No.5811 of 2016 that the appellant was reinstated in service only on 10.1.2012. It was also noticed that more than four thousand posts were created in U.P. Jal Nigam for regularisation of service of such persons who had completed five years of working. The order of the Managing Director dated 26.4.2011 was relied upon for considering the claim of appellant for regularization.

6. In the writ petition, the appellant has clearly stated as under in paragraph 11:

"11. That the respondents reinstated the petitioner on his post on 10.01.2012 in pursuance of the order passed by this Hon'ble Court and he has also received entire back wages as mentioned in the award dated 18.09.2000, however after joining his service the petitioner has received only 120/- per day as salary from the respondents.

7. Respondent employer has filed a counter affidavit in which paragraph 11 has been denied in Para 13 of the countered affidavit, which is as under:

"13. That in reply to the contents of paragraph no.11 of the writ petition, it is reiterated that the petitioner has been paid in accordance with rules, as per the approved rates as per the aforesaid letter dated 29.9.2014 passed by the Labour Commissioner, GT Road, Kanpur."

8. The factual assertion noticed in the judgment of learned Single Judge dated 12.2.2016 as per which that the appellant was reinstated in service only on 10.01.2012 was not disputed by the UP Jal Nigam. In such circumstances, the working of appellant in the employment of U.P. Jal Nigam would be treated as continuous up till 12.1.2012, in law. The policy decision to regularise employees came into existence on 26.4.2011. Therefore, on the date of inception of such policy, the working of the appellant will, in law, be treated as continuing. The appellant had already completed 5 years by then. In such circumstances, it would not be open for the employer to contend that there was break in service or that he had not made out any case for regularisation.

9. Undisputedly, the claim of the appellant was required to be considered in accordance with the policy decision taken by the Managing Director on 26.4.2011. Any subsequent rules may not have been required for such purposes. This is particularly so as more than four thousand posts were created by the State, and the regularisation was made permissible by those employees who had continuously worked for five years, vide order dated 26.4.2011. Regularisation of appellant was required to be considered as per it. Necessary ingredients to extend benefit of regularisation was shown to exist in the case of appellant.

10. In such circumstances, we are of the opinion that the learned Single Judge has erred in not examining the controversy in light of the facts as are noticed above, and, therefore, the dismissal of the writ petition merits interference.

11. This appeal consequently succeeds. The order of learned Single Judge passed on 10.4.2025 is set aside. The respondents are directed to pass appropriate orders in respect of regularization of the appellant in terms of the above observation within two months from the date of presentation of a copy of this order.

Order Date :- 23.5.2025

DKS