Calcutta High Court (Appellete Side)
Sri Bhola Nath Dey vs The Union Of India & Ors on 31 January, 2022
31.01.2022
39
ns/pg Ct.16
F.M.A. 502 of 2019
Sri Bhola Nath Dey
Vs.
The Union of India & ors.
Ms. Malabika Saha,
Mr. Subhankar Das ... for the appellant.
Ms. Sucharita Biswas .. for the respondents.
Heard Ms. Malabika Saha, learned counsel for
the appellant and Ms. Sucharita Biswas, learned counsel
for the respondents.
Learned counsels of either side agree that the
issue involved in this appeal is squarely covered by the
decision of this Court dated 18 th 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 appeal
stands 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.)
