Uttarakhand High Court
Between vs Virendra Singh Chauhan on 8 August, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 8TH DAY OF AUGUST, 2023
BEFORE:
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI PANKAJ PUROHIT
Special Appeal No. 580 OF 2017
BETWEEN:
Chief General Manager, Uttarakhand Jal Sansthan
& others ... Appellants
Vs.
Virendra Singh Chauhan ... Respondents
Counsel for the appellant : Mr. Pankaj Chaturvedi, the learned counsel.
Counsel for the respondents : Mr. M.C. Pant & Mr. N.K. Pipnoi, learned counsel
JUDGMENT
1. This intra-court appeal is filed by the
employer challenging the judgment dated 11.05.2017
passed by learned Single Judge in Writ Petition (S/S)
No 1423 of 2016. By the impugned judgment,
employee's writ petition claiming regularisation was
allowed; the orders passed by employer rejecting
employee's claim for regularisation were quashed and
it was provided that services of the employee would
be deemed to have been regularised with effect from
the date his juniors were regularised.
2. It is contended on behalf of the appellants
that the employee was appointed through
outsourcing; he was not appointed against a
sanctioned post and no formal order of appointment
was issued in his favour, therefore, the direction to
regularise him from the date of regularisation of his
juniors, is unsustainable.
3. Per contra, learned counsel appearing for
respondent submitted that respondent was appointed
as Tubewell Operator directly by Garhwal Jal Sansthan
w.e.f. 12.03.1991 on consolidated salary of Rs. 900/-
per month, therefore, the contention that he was
engaged through outsourcing is devoid of merit. He
further submitted that respondent's service was
terminated by Garhwal Jal Sansthan on 11.01.1996,
respondent raised industrial dispute against
termination, which was referred to Labour Court for
adjudication, and learned Labour Court, Dehradun
decided the reference in favour of the employee vide
award dated 31.07.1997, and held that termination of
his service by Executive Engineer and General
Manager of Garhwal Jal Sansthan, is unjust and
illegal. Said award is on record as Annexure-4 to the
writ petition, which reveals that the stand taken by
Garhwal Jal Sansthan that respondent was engaged
through contractor/outsourcing, was disbelieved.
4. Learned counsel for respondent has drawn
attention of this Court to the judgment dated
17.11.2003 passed by learned Single Judge of this
Court, which is on record as Annexure-5 to the writ
petition. By the said judgment, appellants' writ
petition challenging award of Labour Court was
dismissed. Record reveals that judgment rendered by
learned Single Judge of this Court was challenged
before Hon'ble Supreme Court by filing SLP (C) Nos.
4548-4551 of 2004, which was dismissed. Thereafter,
the review petitions filed by the appellants too were
dismissed by Hon'ble Supreme Court vide order dated
18.07.2006.
5. Learned counsel for respondent thus
submits that learned Labour Court had recorded a
finding that respondent was not engaged through
contractor and the said finding attained finality,
therefore, appellants cannot deny regularisation to
respondent on the ground that he is engaged through
outsourcing. It is further contended that the
appellants reinstated respondent in service, pursuant
to the award rendered by learned Labour Court,
therefore, it is not open to appellants to contend that
respondent was not appointed against the sanctioned
post or that no formal order of appointment was
issued to him.
6. This Court finds substance in the contention
raised by learned counsel for respondent. The finding
returned by learned Labour Court that respondent is
an employee of Jal Sansthan, who was not engaged
through outsourcing, has attained finality; therefore,
appellants cannot deny regularisation to respondent
on the ground that he is engaged through contractor.
7. It is not in dispute that respondent was
appointed as Tubewell Operator in March, 1991 and
he is thereafter serving continuously in the said
capacity except for the period when he remained out
of employment due to termination, which however,
was declared to be illegal with a direction to reinstate
him with backwages. It is nobody's case that work
and performance of respondent during the last more
than two decades was not found to be satisfactory. It
was for the employer to ensure that all codal
formalities were completed while appointing the
respondent in 1991. After taking work continuously
for nearly three decades, employer cannot be
permitted to raise the plea that respondent was
appointed in the absence of sanctioned post or formal
order of appointment was not issued to him.
8. Hon'ble Supreme Court in the case of N.S.K.
Nayar v. Union of India, 1992 Supp (2) SCC 508 has
held in paragraph no. 6 that "taking work out of the
petitioners in the STS posts for 10/15 years and
denying them the right of regularisation and the
consequent benefits in the said grade, is wholly
arbitrary and is violative of Article 16 of the
Constitution of India".
9. We have gone through the impugned
judgment. Learned Single Judge has given valid
reasons for allowing the writ petition. In an intra-
court appeal, we are not inclined to interfere with the
same. Thus, there is no scope for interference.
10. Accordingly, this special appeal is
dismissed. No order as to costs.
(Pankaj Purohit, J.) (Manoj KumarTiwari, J.)
08.08.2023
Aswal
