A. Subramaniam v. The Lieutenant Governor And Others

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side [CIRCUIT BENCH AT PORT BLAIR] ...

WPA/27/2022 A. Subramaniam ... Petitioner

Versus

The Lieutenant Governor and others

...Respondents

Mr. Gopala Binnu Kumar ... for the petitioner Ms. Anjili Nag ... for the respondents December 12, 2022 [SR] Item No.2 The subject matter in this writ petition is the impugned Order dated 24th /25th January, 2022 passed by the Secretary, Port Blair Municipal Council. By the impugned order, the petitioner's claim for regularisation of his service was rejected on two-fold grounds; firstly, that the petitioner has continued to work as Peon-cum-Chowkidar under the cover of the orders of Court or Tribunal; and secondly, that the petitioner educational qualification for appointment and was not engaged against any sanction post.

The matter has a chequered history.

The petitioner was employed as Peon-cumChowkidar in Garacharma-II, Gram Panchayat since October, 1995. His service was terminated summarily by the Gram Panchayat. He approached the Labour Court under the provisions of the Industrial Disputes Act in ID Case No.19 of 2004 and a reference was made.

By an Award dated 30th July, 2008, the petitioner was directed to be reinstated in service as a Peon-cumChowkidar. It was also ordered that he will be entitled to be absorbed against regular vacancy in future. In such event occasion, all benefits including salary and other emoluments fixed from time to time by the Panchayat were to be made available to the petitioner. His service was to be notionally calculated from the date of his first engagement, however, without back-wages.

The Port Blair Municipal Council (PBMC) took over the entire assets and liabilities of the Garacharma -II, Gram Panchayat in April, 2015.

Pursuant to a scheme for regularisation of Daily Rated Mazdoors (DRM), the PBMC approved regularisation of 176 of such DRMs working with the PBMC after giving due relaxation in age and in educational qualification requirement.

The petitioner applied to the PBMC for being treated similarly as the said 176 DRMs and wanted regularisation.

He approached this Court in WP/293/2018. By a judgment and order dated 13th December, 2019 , a Single Bench of this Court directed the PBMC to reguarlise the service of the petitioner in the same cadre in which he was working on a permanent basis.

On an appeal being carried by PBMC, a Division Bench of this Court upheld the direction of the Single Judge as contained in the judgment dated 13th December, 2019 (Supra). It was however directed that the PBMC has to ascertain as to whether the petitioner fulfilled the criteria in the Uma Devi decision of the

Hon'ble Supreme Court reported in (2006) 4 SCC Pg.1. The other decisions of the Hon'ble Supreme Court namely M.L. Kesari reported in (2010) 9 SCC 247 was also considered.

The impugned order came to be passed pursuant thereto.

Mr. Gopala Binnu Kumar, learned counsel for the petitioner would argue that both the grounds for rejection of the petitioner's prayer for regularisation of service are contrary to the Award (supra) against the findings of the Single Bench of this Court and even otherwise not sustainable in fact or law.

Mrs. Anjili Nag, learned counsel appearing for the PBMC, submits that the petitioner was not working in the Panchayat in any sanctioned post. He was a Daily Wager. He cannot claim parity with 176 DRMs regularized by the Port Blair Municipal Council since he was not even worked as worked charged employee. There are atleast 1100 persons in the PBMC and 6 similarly situated persons from the said panchayat making similar claim. The PBMC is in no financial position to absorb them.

This Court has carefully heard the arguments of both the parties.

What stands out before this Court is that the PBMC has not been able to demonstrate before this Court that the post of Peon-cum-Chowkidar was not there in the Garacharma-II Gram Panchayat or that it is not a sanctioned post.

This Court also notices in no answer in terms of that the Labour Court had in its Award dated 30th July, 2008(Supra) clearly held that the termination of the petitioner even as a temporary employee is illegal. There is therefore a presumption that the post of Peon-cumChowkidar is a sanctioned post. The Labour Court found that the petitioner was a workman under the Gram Panchayat. The Award has not been challenged till date and has reached finality.

The legal status of the petitioner under the Gram Panchayat therefore cannot be questioned by the PBMC having taken over the assets and liabilities. The PBMC also cannot travel behind the Award in question (Supra). The Award passed under section 17 of the Industrial Disputes Act is not an interim measure. The Award cannot be equated with the interim orders referred to the Uma Devi's decision pursuant to which large sections of persons continued to remain illegally engaged. An Award is one of conclusive findings which may involve trial by evidence. The unchallenged award has pronounced even on disputed questions. The Award has become conclusive. The first ground on which the petitioner was refused regularisation in the impugned order i.e. that he was in service under interim orders of courts cannot therefore be sustained.

The second ground was that the petitioner was not engaged against any sanctioned post is equally erroneous as has already discussed here in above.

The observations of the Division Bench of this Court in MA/31/2020 on 16th September, 2021, in the last four paragraph, must be read in harmony with other portions

of the judgment and the award and other proceedings of the petitioner.

Lastly, Ms.Anjili Nag, learned counsel appearing for the Port Blair Municipal Council submits that the petitioner is only one and other eleven employees of the Gram Panchayat and other persons in the PBMC itself who are waiting for result of this proceedings. Such number of sanctioned posts are not available under PBMC to accommodate all persons.

This Court is of the view that the H.R issues in the PBMC cannot stand in the way of lawful rights accrued by the petitioner. The case of the other employees would have to be in the facts and circumstance of each case. The writ petition therefore succeeds. The impugned order dated 24/25th January, 2022 is quashed and set aside.

The writ petitioner shall be absorbed in service of the Port Blair Municipal Council strictly in terms of the scheme for absorption of 176 employees dated 29th April, 2011. The terms and conditions of the petitioner's absorption shall be the same as the said 176 employees. For the purpose of continuation of service, observations of the Labour Court in its Award dated 30th July, 2008 shall be borne mind by the Port Blair Municipal Council. The writ petition stands disposed of .

There shall be no order as to costs.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

( Rajasekhar Mantha, J. )