Sri Ajay Tiwari vs The Union Of India & Ors
2022 Latest Caselaw 2 Cal

03.01.2022
   4,
 46 to 58
ns/pg Ct.16
                M.A.T. 1852 of 2017
                   Sri Ajay Tiwari.
                        Vs.
              The Union of India & ors.

                       With

              F.M.A. 291 of 2020
               Sri Dulal Chandra Das.
                         Vs.
              The Union of India & ors.

                       With

               F.M.A. 138 of 2020
                    Rajan Ram
                        Vs.
              The Union of India & ors.


                       With

              F.M.A. 189 of 2020
                  Sri Bijay Shaw
                        Vs.
              The Union of India & ors.

                       With

               F.M.A. 190 of 2020
                  Sri Babu Shaw.
                        Vs.
              The Union of India & ors.

                       With
                F.M.A. 191 of 2020
                 Md. Nasiruddin.
                        Vs.
              The Union of India & ors.

                      With
               F.M.A. 195 of 2020
                 Sri Tapan Gope.
                       Vs.
              The Union of India & ors.

                       With
                 2




        F.M.A. 206 of 2020
Sri Dilip Kumar Hela @ Dilip Hela.
                Vs.
     The Union of India & ors.

              With

      F.M.A. 207 of 2020
        Sri Santosh Roy.
               Vs.
     The Union of India & ors.

              With

      F.M.A. 215 of 2020
        Sri Sujay Sarkar.
               Vs.
     The Union of India & ors.

              With

      F.M.A. 216 of 2020
  Sri Shyam Sundar Goswami.
              Vs.
    The Union of India & ors.

              With

      F.M.A. 297 of 2020
          Sk. Rashid.
              Vs.
     The Union of India & ors.

              With

      F.M.A. 501 of 2019
     Sri Chhote Lal Mahato.
              Vs.
     The Union of India & ors.

              With

        F.M.A. 80 of 2020

         Sri Sentu Das.
               Vs.
     The Union of India & ors.
                                3




 Ms. Malabika Saha,
 Mr. Subhankar Das                        ... for appellants.
                                       (in all the appeals)

 Mr. Sahasrangshu Bhattacharjee,
 Ms. Sucharita Biswas           ..         for respondents.

Heard Ms. Malabika Saha, learned counsel for

the appellants and Mr. Shasrangshu Bhattacharjee for

the respondents.

Learned counsels of either side agree that the

issue involved in these appeals are squarely covered by

the decision of this Court dated 18th November, 2021 in

MAT No.1863 of 2017 etc. batch. The operative portion of

the order reads as follows:-

"Bearing in mind the above legal principle, if we examine the order dated 28 th December, 2016 which was impugned in these appeals, we have no hesitation to hold that the Government had entered into the merits of the dispute. When the Conciliation Officer submitted his failure report, it was solely on the ground that the parties could not arrive at a consensus. The Government while exercising power under Section 12 (5) of the Act, which being an administrative function, is required to examine as to whether the reference sought for was either perverse or frivolous. Admittedly, there is no such finding rendered by the Government as to whether the reference sought for is either perverse or frivolous. If that is the case, then the Government could not have referred the

decision of the Hon'ble Supreme Court in Uma Devi (supra) and declined to refer the dispute.

In our considered view, the decision in Uma Devi (supra) was rendered in a different factual background where the "back door entrants" sought for regularisation of the services as that of the regular employees, who had undergone a process of recruitment. In such cases concerning public employment where several organisations of the Government resorted to recruit the persons of their choice without undertaking a recruitment process, without notifying the vacancies and without complying with Articles 14 and 16(1) of the Constitution of India, in the background of those cases, the Hon'ble Supreme Court elaborately discussed all the issues and pointed out that persons who had illegally got employment without undergoing a recruitment process, cannot seek to get their services regularised after working for a considerable period of time. Therefore, in our considered view, the said decision may not be applicable to the facts and circumstances of these cases.

In any event, what the petitioner and other similarly placed persons sought for was a reference to the Industrial Tribunal for adjudicating their claim for absorption and regularisation in the rifle factory. Therefore, whether at all, the decision in Uma Devi (supra) can be applied to the case of the petitioner and others is a matter which is touching upon the merits of the individual case, which obviously could not have been a

reason to refuse to refer the dispute for adjudication. Therefore, we are of the considered view that the order passed by the Government dated 28th December, 2016 calls for interference.

Accordingly, the mandamus appeals are allowed. The order passed in the writ petitions are set aside. Consequently, the order passed by the Government of India on 28th December, 2016 is quashed and set aside and a direction is issued to the respondent nos.1 and 2 to refer the dispute raised by the petitioner and others, through their trade union and individually, to the Central Government Industrial Tribunal for adjudication."

Thus, following the above decision, the appeals

stand allowed and there will be a direction to the

Government to refer the dispute within 12 weeks from the

date of receipt of the copy of this judgment.

Urgent photostat certified copy of this order, if

applied for, be furnished to the parties expeditiously upon

compliance of all legal formalities.

( T. S. Sivagnanam, J.)

(Hiranmay Bhattacharyya, J.)