- (1.) THE instant writ petition has been filed against the impugned Award dated 17.9.1996 (Annexure 12), by which claim of respondent-workman has been accepted and the order of reinstatement with consequential benefits has been passed.
(2.) THE facts and circumstances giving rise to this case are that respondent No.1, a Junior Engineer, was employed on daily wages for a period of 100 days vide order dated 22.9.1988 (Annexure 1) in a particular scheme known as NREP/RLEGP. On completion of 100 days, his service, though could have been terminated automatically without any order, came to an end by a specific order of the Authority dated 29.12.88 (Annexure 2). Respondent No.1 was offered appointment for 29 days in another Scheme known as Jeevan Dhara, vide order dated 17.1.89 (Annexure 3) and it was extended from time to time upto 12.6.89. THE last order of appointment for a period of seven days was issued on 24.6.89 which came to an end on 30.6.89. Respondent-workman filed a writ petition No. 2338/1989 praying therein that the order of termination of his services with effect from 1.7.89 be quashed with all con-sequential benefits and his appointment for 100 days or subsequently for a specific period be declared illegal and void and ignoring it, he may be treated in continuous service w.e.f. 22.9.88. This Court, while entertaining that writ petition, passed an interim order dated 18.7.89 in the following terms:- " . . . Meanwhile, operation of the order dated 13.1.1989 shall remain ineffective and if the petitioner already relieved, shall be taken back in service." On the strength of interim order, respondent-workman was re-employed and allowed to continue in service. However, order dated 7.5.91 (Annexure 11) was passed terminating the services of respondent-workman and other similarly situa-ted persons on the ground that the posts stood abolished. Various writ petitions were filed and this Court decided the same in Pawan Kumar and others vs. State of Rajasthan and others (1), wherein the Court considered that the Junior Engineers had been employed under different Schemes and ultimately all these Schemes were merged into Jawahar Lal Nehru Yojna which subsequently came to be known as Jawahar Rozgar Yojna. The Court observed as under:- "It is apparent that the relief of reinstatement to the petitioners for the posts under Jawahar Rozgar Yojna in the present case, cannot be granted as a consequence of abolition of the posts under Jawahar Rozgar Yojna, which has been held to be bonafide.....The question of regularisation and grant of equal pay for equal work in the context of appointments made under Jawahar Rozgar Yojna by the D.R.D.As. on the anvil of right to livelihood and guarantee of employment under Article 41 of the Constitution of India was not tenable." While deciding the case, the Court placed reliance upon the judgment of the Supreme Court in Jaipal & others vs. State of Haryana and others (2), wherein it had been held that where the Government Schemes, under which appointments were made, were themselves temporary, no order for regularising the temporary services of such appointees could be made. Being aggrieved and dissatisfied by the judgment in Pawan Kumar and others (supra), the petitioners therein went in appeal before a Division Bench of this Court and ultimately to the Hon'ble Supreme Court and the Hon'ble Supreme Court decided the matters in Rajendra and others vs. State of Rajasthan and others (3) by holding that if the posts have been abolished for any reason whatsoever, employees working on the said posts cannot be permitted to continue as the posts are not available. The Hon'ble Supreme Court observed as under:- "The foot-note inserted in the letters of appointment stated that app-ointment was purely temporary and the services of the Agencies were not transferable in any other Department of the Government, though the period of appointment could be extended after putting-in satisfactory services during the period of initial appointment, i.e. six months. Such appointments were extended from time to time but on similar terms and conditions. Inasmuch as need for the work was partially over and the Government was finding it difficult to provide funds for administrative expenses which it found to be non-productive and unnecessary, an Expert Committee was appointed to review the situation. Decision for abolition of the posts was taken consisten-tly with the findings and recommendations of such committee....The decision taken by the respondent-State to abolish the posts was a bonafide decision taken after due application of mind by appointing an Expert Committee which went deep into all relevant consideration and made recommendation in the interest of rationalisation." The Hon'ble Supreme Court dismissed the appeals filed by the Junior Engineers and further observed that it was not possible to issue any direction that they may be accommodated/absorbed in some other Schemes.
(3.) IN the instant case, reference was made whether termination of workman with effect from 7.5.1991 was valid, if not, to what relief he was entitled for. IN fact, during this period he had been working under the order of this Court as he stood terminated w.e.f. 1.7.89. Moreso, the impugned Award runs counter to the judgment of the Hon'ble Supreme Court in Rajendra and others (supra) as the reference before the Labour Court had been regarding the same date of termination, i.e. 7.5.91. Therefore, it cannot be said that there was some extraneous consideration in abolition of the posts or the order was passed to deprive the respondent-workman and other similarly situated persons of their continuation in service. Moreso, this Court, in Pawan Kumar (supra) did not find fault with the abolition of posts. I am at complete loss to understand how the findings in Award could be given contrary to those recorded by this Court and once this Court had decided the issue what was the occasion for the Labour Court to decide the same. There is another aspect of the matter. The Labour Court had taken into account the entire service rendered by the respondent No.1 from 22.9.88 to 7.5.91 while computing the period for the purpose of determining the application of Section 25-F of the Industrial Disputes Act, 1947 (for short, "the Act, 1947"). The Labour Court failed to appreciate that the services rendered by respondent No.1 from 22.9.88 for a period of 100 days was entirely in a different Scheme and it could not have been clubbed with the services rendered by him under another Scheme with effect from 17.1.89. The Labour Court further failed to appreciate that the ser-vices of respondent No.1 stood terminated with effect from 30.6.89 and he was allowed to work under the interim order of this Court and admittedly, the writ petition ultimately stood dismissed. There can be no quarrel to the legal proposition that no party can suffer by the action of the Court and when the High Court is exercising its powers under Article 226 of the Constitution of India, interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised. The institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it. (Vide Grindlays Bank Ltd. vs. Income Tax Officer and others (4); Ram Krishna Verma vs. State of Uttar Pradesh (5); State of Madhya Pradesh vs. M.V. Vyavsaya & Company (6) and Smt. Rampati Jayaswal and others vs. State of Uttar Pradesh and others (7). ;