SPA/629/2018
2022 Latest Caselaw 2641 UK

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                         25TH AUGUST, 2022
             SPECIAL APPEAL No. 629 OF 2018

Between:

Poonam Dobriyal.
                                                           ...Appellant

and

Oil and Natural Gas Corporation
Limited and others.
                                                       ...Respondents

And

SPECIAL APPEAL No. 630 OF 2018

Between:

Poonam Dobriyal.

...Appellant

and

Oil and Natural Gas Corporation Limited and others.

...Respondents

Counsel for the appellant. : Mr. M.C. Pant, the learned counsel.

Counsel for the respondents. : Mr. Rakesh Thapliyal, the learned Senior Counsel assisted by Mr. Siddhartha Sah, the learned counsel.

COMMON JUDGMENT : (per Sri Vipin Sanghi, C.J.)

These Special Appeals arise from the common

judgment rendered by the learned Single Judge on 01.08.2018 in Writ Petition (S/S) No. 218 of 2017 and

Writ Petition (S/S) No. 863 of 2017 preferred by the

appellant. The learned Single Judge, by the common

impugned judgment, dismissed the said Writ Petitions.

2. It appears that the appellant was appointed as

Security Receptionist initially in December, 1994 for a

period of one year. It also appears that her engagement

was continued from time to time up to 31.12.2016. She

was also occupying official residential accommodation,

which she was asked to vacate.

3. Being aggrieved by the non-extension of her

services, and the demand made by the respondents

asking her to vacate the official residence, she preferred

Writ Petition (S/S) No. 341 of 2016, which was disposed

of on 31.11.2016 permitting the petitioner to make a

representation, which would be decided by the

respondents. Consequently, she made her

representation on 15.12.2016, which was rejected on

24.03.2017. She then preferred the Writ Petitions in

question seeking the following reliefs :-

Reliefs sought in Writ Petition (S/S) No. 218 of 2017 :-

"a) Issue, writ, rule or direction in the nature of certiorari quashing the effect and operation of the impugned order dated 29-12-2016 and 14.12.2016 after calling the entire record from the respondents.

b) Issue writ rule or direction in the nature of mandamus directing the respondents to treat the petitioner in service and conferred her the regular status keeping in view the facts highlighted in the body of the writ petition and the judgment of the High Court of Gujarat and Hon'ble Supreme Court along with all consequential benefits had it been that the impugned order was never being in existence.

c) To award damages or compensation to the petitioner for damages/compensation in tune of Rupees 5 crore or any other amount which the courts may deem fit and proper against the tortuous and malafide act of the respondents and quantify the same and also direct to be recovered the same from the erring respondents who are instrumental for the same.

d) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

e) Issue writ rule or direction appropriate in nature declaring the condition no.11.4 of the appointment letter dated 31-12-2012 and treating the petitioner as tenure employee as unconstitutional, void and contrary to the decision of the CGIT, which was upheld by the Hon'ble Apex Court and as well as provisions of Standing Orders Act along with all consequential benefits.

Reliefs sought in Writ Petition (S/S) No. 863 of 2017 :-

"a) Issue, writ, rule or direction in the nature of certiorari quashing the effect and operation of the impugned order dated 24-03-2017 (as contained Annexure no.2 to this writ petition) after calling the entire record from the respondents.

b) Issue writ rule or direction in the nature of mandamus to direct the respondents to grant

the benefit of regularization along with all consequential benefits had it been the impugned order was never in existence.

c) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

d) Issue writ rule or direction appropriate in nature declaring the condition no.11.4 of the appointment letter dated 31-12-2012 and treating the petitioner as tenure employee as unconstitutional, void and contrary to the decision of the CGIT, which was upheld by the Hon'ble Apex Court and as well as provisions of Standing Orders Act along with all consequential benefits."

4. The appellant placed reliance on the decision

of the Gujarat High Court in Special Civil Application No.

17161 of 2004, and the award of the CGIT-cum-Labour

Court, Gujarat in CGITA No. 1476 of 2004, to contend

that in compliance of the said orders, the services of

workmen had already been regularized by the

respondents-ONGC, and that she is also covered by the

said award and the order of the Gujarat High Court. The

appellant placed reliance on the condition contained in

her initial letter of appointment to the effect that her

appointment is subject to the aforesaid proceedings.

5. On the other hand, the submission of the

respondents-ONGC was that the award of the CGIT, and

the decision of the Gujarat High Court, were in respect

of only the specific employees, to whom it related, and

they were not the award/judgment in rem.

6. The learned Single Judge accepted this

submission of the respondents and, in our view, rightly

so.

7. The learned Single Judge, however, observed

that the appellant was not a workman. The submission

of Mr. M.C. Pant, the learned counsel for the appellant,

is that this finding has no basis. He further submits that

the respondents had, in fact, raised an objection in their

counter affidavit filed in the writ proceedings, that the

petitioner has an alternate efficacious remedy before the

Industrial Tribunal, being a workman. Therefore, the

dismissal of the Writ Petition on the ground that the

appellant was not a workman is not sustainable.

8. The further submission of Mr. M.C. Pant is that

the judgment of the Supreme Court, in India Literacy

Board and others v. Veena Chaturvedi and others,

2005 (3) SCC 79, only relates to the proposition that a

writ Court would not issue a mandamus for

regularization of a tenure based employee. However, no

such limitation exists for the Labour Court/ Industrial

Tribunal to issue a direction in that regard, as has been

done by the CGIT in its award passed in CGITA No. 1476

of 2004. Mr. M.C. Pant submits that the appellant is

willing to proceed to agitate her claim before the

Industrial Tribunal, even at this stage.

9. Having heard the learned counsels, we are

inclined to permit the appellant to avail of her remedy

before the Industrial Tribunal. At the same time, we

make it clear that we have not examined the issue :

whether, or not, the appellant is a workman, and it shall

be open to the Industrial Tribunal to examine the said

issue, if raised by the respondents.

10. As we have already noticed hereinabove, the

appellant is not covered either by the industrial award

rendered by the CGIT in CGITA No. 1476 of 2004, or by

the decision of the Gujarat High Court dated

29.04.2015. However, it shall be open to the appellant

to raise her claim, and the same shall be adjudicated by

the Tribunal on its own merits, after returning a finding

on the status of the appellant, as to whether, or not, she

is a workman.

11. The appellant has been in occupation of the

official residence till date, even though her contractual

appointment was discontinued after 31.12.2016. The

learned counsel for the appellant submits that the

appellant is ready and willing to vacate the same within

two months from today. He, however, submits that the

respondents had not paid the CPF amount due to the

appellant, which the appellant is ready and willing to

accept without prejudice to the rights and contentions of

the parties.

12. We, accordingly, direct that the appellant shall

handover the vacant peaceful possession of the official

accommodation, which the appellant is occupying, on or

before 31.10.2022. She shall be liable to pay the

normal charges for occupying the said accommodation.

Simultaneously, on the vacation of the premises by the

appellant, she shall be paid the CPF dues by the

respondents. This exercise shall be conducted without

prejudice to the rights and contentions of the parties.

13. With the aforesaid directions, the present

Special Appeals stand disposed of.

14. Considering the fact that the matter has been

hanging fire since 2016, we request the Industrial

Tribunal to decide the reference, once made, at its

earliest convenience.

15. In sequel thereto, all pending applications

stand disposed of.

________________ VIPIN SANGHI, C.J.

_____________ R.C. KHULBE, J.

Dt: 25th August, 2022 Rahul