Delhi High Court
Bihari Lal vs Mcd on 20 May, 2013
Author: Pradeep Nandrajog
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: May 20, 2013
+ W.P.(C) 1078/2012
BIHARI LAL ..... Petitioner
Represented by: Mr.Anuj Aggarwal and
Mr.Sachin Sharma, Advocates
versus
MCD ..... Respondent
Represented by: Ms.Saroj Bidawat, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG, J. (Oral)
1. Undisputed position is that the petitioner was employed as a daily
wage Beldar by MCD on January 01, 1969 and worked continuously till
January 15, 1994 when his services were terminated.
2. Petitioner raised an industrial dispute vide ID No.68/1996 which
culminated in an Award in his favour on November 23, 2005, requiring
him to be reinstated on the same terms and conditions on which he was
working at the time of his termination.
3. While reinstating the petitioner The Industrial Tribunal rightly
restricted the terms of the reinstatement to the ones on which the
petitioner was employed; for the reason the Tribunal could not have
created a post for the petitioner. Respondent challenged the Award by
filing a writ petition in this Court which was dismissed. The petitioner
was reinstated in service but as a daily wage Beldar.
4. It is in the afore-noted backdrop of facts that we need to consider :
Whether OA No.2806/2011 filed by the petitioner was rightly dismissed
in limine by the Tribunal on August 04, 2011; the order impugned.
5. Without notice to the MCD, the Tribunal has dismissed OA
No.2806/2011 opining that the direction contained in paragraph 53 of the
decision of the Supreme Court in the decision reported as JT 2006 (4) SC
420 Secretary State of Karnataka & Ors. v. Uma Devi & Ors. were of no
help to the petitioner.
6. In Uma Devi's case (supra) the Supreme Court held that creation of
posts is within the domain of the executive alone and no Court can direct
posts to be created. The Supreme Court held that Courts cannot even
direct regularization of service. But, in paragraph 53, an exception was
carved out. Irregular (as distinct from illegal) appointments were held
capable of being regularized by judicial verdicts provided a
vacancy/regular post existed and the incumbent had put in 10 years
service.
7. Uma Devi's case (supra) did not concern itself with a policy of
regularization framed by the executive. Needless to state, the executive
can certainly frame a policy for regularization and any violation thereof
would be actionable.
8. As per the petitioner, the MCD had framed a policy of
regularization in the year 1978. As per him, had he not been dismissed
from service in the year 1994 he would have found himself to be
regularized. In other words, what the petitioner called upon the Tribunal
was to see, and thereafter decide the effect of the termination of
petitioner's service and the same being found to be illegal and he being
reinstated; the legal effect thereof on the policy of regularization.
9. The Tribunal ought to have considered the fact that the petitioner is
a lowly paid employee; his pleadings may not be so focussed; but the
pleadings have to be meaningfully read.
10. We are of the opinion that the issue raised by the petitioner did not
warrant a dismissal in limine.
11. We do not prima facie reflect upon the merits of the controversy
lest the respondent is prejudiced. Facts noted above and our reflection
thereon are limited to highlight the issue which arises for consideration.
12. The writ petition stands disposed of setting aside the impugned
order dated August 04, 2011. OA No.2806/2011 is restored for
adjudication on merits before the Tribunal.
13. Parties shall appear before the Registrar of the Tribunal on July 01,
2013 who shall thereafter list OA No.2806/2011 before the Roster Bench.
14. No costs.
15. Dasti.
PRADEEP NANDRAJOG, J.
V. KAMESWAR RAO, J.
MAY 20, 2013
mm/rk
