PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY & ANR. versus KARAMJIT SINGH on 15 April 2019

1. The present Civil Appeal has been filed to challenge the finalJudgment and Order dated 09.07.2018 passed by a Division Bench ofthe Punjab & Haryana High Court at Chandigarh, in LPA No. 894 of2018.

F2. The factual background of the case, is as under:

2.1. On 01.12.1995, the Respondent was appointed as aChowkidar on daily wages by the Appellant – Punjab UrbanPlanning and Development Authority. His name was on themuster rolls till 31.03.1997.

G2.2.On 23.01.2001, the Government of Punjab revised the Policyfor regularization of work-charged / daily wage and othercategories of employees.

As per the revised Policy, all the Departments under theGovernment of Punjab were directed to prepare lists ofHwork-charged employees, daily wagers, and other similar categories of employees, who had completed 3 years ofservice. From such lists, employees would be absorbed /regularized against regular posts existing in eachDepartment, in order of seniority.

2.3. On 26.12.2001, the Appellant – Authority issued an OfficeOrder regularizing the services of 102 daily wagers as perthe State Government’s revised Policy dated 23.01.2001.

2.4. The Respondent’s name was included in the Office Orderissued by the Appellant – Authority. Consequently, hisservices came to be regularized w.e.f. 06.11.2001.

2.5. Subsequently, two employees of the Appellant – Authorityviz. Baldev Singh and Rikhi Ram, filed Writ Petition No.15843 of 2002 before the Punjab & Haryana High Court,challenging the Office Order dated 26.12.2001. TheRespondent was impleaded as a party in the said WritPetition. It was alleged that there were irregularities in theregularization of certain employees, including that of theRespondent.

2.6. The High Court vide Order dated 01.10.2002, directed theAppellant – Authority to treat the Writ Petition as arepresentation on behalf of the writ petitioners, and pass aspeaking order within 4 months.

2.7. Pursuant to the direction of the High Court, the Appellant –Authority scrutinized the list of employees who wereregularized vide Office Order dated 26.12.2001. TheAuthority called for a report from the Executive Engineer(C/Project – II), Mohali. The report revealed that theRespondent had not completed the requisite period of3 years’ service prior to 22.01.2001.

2.8. The Appellant – Authority issued a Show Cause Noticedated 24.03.2003 to the Respondent directing him to appearbefore the Chief Administrator of the Appellant – Authorityon 31.03.2003 for a personal hearing.

2.9. On 31.03.2003 the Respondent appeared before the ChiefAdministrator of the Appellant – Authority for the personalhearing. The Chief Administrator found that the Respondent A

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868SUPREME COURT REPORTS

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failed to furnish any evidence whatsoever, documentary orotherwise, or any satisfactory proof of having served theAppellant – Authority for at least 3 years prior to 22.01.2001.

The Chief Administrator vide Order dated 22.05.2003,annulled the regularization of the services of the Respondent.It was held that the regularization of the services of theRespondent was not as per the revised Policy issued by theGovernment of Punjab on 23.01.2001.

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2.10. The Respondent challenged the Order dated 22.05.2003passed by the Chief Administrator, by way of Writ PetitionNo. 8354 of 2003 before the Punjab & Haryana High Court.

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The High Court dismissed the Writ Petition vide Orderdated 23.10.2003, and granted the Respondent liberty toapproach the Labour Court for redressal of his grievances.

2.11. On 20.12.2003, the Respondent raised an industrial disputeDagainst the Appellant – Authority before the AdditionalLabour Commissioner, Punjab. The matter was referred toconciliation.

Upon failure of the conciliation proceedings, the disputewas referred to the Industrial Tribunal, Patiala.

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2.12. The Respondent submitted that his services had been illegallyterminated by the Appellant – Authority vide Order dated21.11.2003. He contended that he had continuously workedwith the Appellant – Authority from 01.12.1995 till21.11.2003, and had put in more than 240 days of service inFthe last calendar year. The Respondent alleged that thetermination of his services was in violation of Section 25-F,25-G, and 25-H of the Industrial Disputes Act, 1947.

2.13. The Appellant – Authority submitted that the Respondentworked as a daily wager, whose name was borne on theGmuster rolls. As per the record, there were breaks in hisservice from 01.12.1995 till 31.03.1997. He had put in only6 months of service prior to 31.03.1997. After 1997, theRespondent was not employed as a daily wager with theAppellant – Authority.

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It was further submitted that the Respondent’s namewas not included in the original list dated 12.09.2000forwarded by the Divisional Engineer, PUDA, Mohali tothe Superintending Engineer, PUDA, Mohali.

The Respondent’s name however came to be includedin the final list recommended for regularization, through hisconnivance with some officials of the Appellant – Authority.

2.14. The Industrial Tribunal, Patiala dismissed the Referencemade by the Respondent vide Order dated 15.10.2013. Itwas held that since the entry of the Respondent into serviceon 26.12.2001 was through wrongful means, his serviceswere rightly terminated vide Order dated 22.05.2003.

2.15. Aggrieved by the Order passed by the Industrial Tribunal,the Respondent filed Writ Petition No. 21519 of 2014 beforethe Punjab & Haryana High Court.

A Single Judge of the High Court vide Order dated07.02.2018, allowed the Writ Petition filed by theRespondent, and set aside the Order dated 15.10.2013passed by the Industrial Tribunal, Patiala.

The learned Single Judge held that “rightly or wrongly”the Respondent’s services had been regularized on26.12.2001 under the revised Policy of the StateGovernment. Thus, permanent status had been given to theRespondent w.e.f. 26.12.2001.

The learned Single Judge held that it was necessary forthe Appellant – Authority to have issued a charge-sheet,conduct an enquiry against a permanent employee, beforeterminating or dismissing him from service under theRegulations. Undisputedly, since no charge-sheet had beenissued, or enquiry conducted, the action of terminating theservices of the Respondent by merely issuing a Show CauseNotice, and granting a personal hearing was not sufficientcompliance with the Regulations. The order of terminationdated 22.05.2003, and the Award of the Industrial Tribunalwere set aside.

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The learned Single Judge granted liberty to theAppellant – Authority to take necessary action against theRespondent under the statutory Regulations. It was orderedthat the Appellant – Authority pass a final order afterconducting a disciplinary enquiry against the Respondent.The Respondent shall be deemed to be under suspension,from the date on which his services were terminated i.e.22.05.2003 till the date of passing of the final order.

The Appellant – Authority was further directed tocalculate, and disburse subsistence allowance to theRespondent from 22.05.2003 onwards, and continue todisburse the same till conclusion of the disciplinaryproceedings against him.

2.16. Aggrieved by the Order of the learned Single Judge, theAppellant – Authority filed LPA No. 894 of 2018 beforethe Division Bench of the Punjab & Haryana High Court.

The Division Bench dismissed the LPA filed by theAppellant – Authority vide impugned final Judgment andOrder dated 09.07.2018, and affirmed the Order dated07.02.2018 passed by the Single Judge. It was held that thePunjab Urban Planning & Development AuthorityEmployees (Punishment and Appeal) Regulations, 1997contained provisions for initiation of regular departmentalenquiry before dismissal or termination of a regularemployee. The termination of the services of the Respondentby mere issuance of a Show Cause Notice was not only dehors the Regulations, but also contrary to the principles ofnatural justice.

2.17. The Appellant – Authority filed the present Civil Appeal tochallenge the Judgment and Order dated 09.07.2018 passedby the Division Bench of the Punjab & Haryana High Court.

On 22.11.2018, this Court issued Notice to theRespondent, subject to the Appellant – Authority depositingRs. 25,000/- towards Costs of litigation for the Respondent.The Appellant – Authority deposited the aforesaid amountin this Court.

3. We have heard Mrs. Rachana Joshi Issar, learned Counsel forthe Appellant – Authority, who inter alia submitted as under:

3.1. The Respondent worked with the Authority as a daily wager,whose name was on the muster rolls from 01.12.1995 till31.03.1997. He had put in only 6 months of service prior to31.03.1997, and was not in service thereafter. Therefore,he was not eligible to be regularized under the StateGovernment’s revised Policy dated 23.01.2001 whichrequired an employee to have completed 3 years’ ofcontinuous service prior to 22.01.2001, so as to be eligiblefor regularization.

It was further submitted that the Respondent hadfraudulently, and in connivance with some officials of theAppellant – Authority, got his name surreptitiously includedin the final list of employees recommended forregularization.

3.2. The report submitted by the Executive Engineer(C/Project – II), Mohali to the Chief Administrator showedthat the Respondent had not fulfilled the mandatorypre-requisite of having served for 3 years’ or more up till22.01.2001.

The Chief Administrator vide Order dated 22.05.2003annulled the Office Order dated 26.12.2001 qua theregularization of the services of the Respondent.

3.3. It was further submitted that the Appellant – Authorityconducted a disciplinary enquiry against the officials whohad recommended the name of the Respondent forregularization. The Enquiry Report dated 25.01.2005 foundfour officials to have supplied wrong information withrespect to the regularization of the Respondent, and someother daily wagers who had less than 3 years’ service.

Since the appointment of the Respondent on regular basiswas void on account of having been fraudulently obtainedby collusion, the Respondent was not entitled to theprotection under the provisions of the Industrial DisputesAct, 1947.

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A4. Mr. Mukesh Kumar Sharma, learned Counsel appearing onbehalf of the Respondent, submitted that:

4.1. There was no infirmity in the Orders passed by the SingleJudge and Division Bench of the High Court.

4.2. It was submitted that the present case was covered by theBdecision in Managing Director, ECIL, Hyderabad & Ors.v. B. Karunakar & Ors.,[1] rendered by a ConstitutionBench of this Court.

5. We have carefully perused the pleadings and the writtensubmissions made by the parties, and also considered the submissionsCmade at the oral hearing.

5.1. In the present case, the Respondent had sought to secureregularization of his services, even though he did not fulfillthe pre-requisite of a minimum of 3 years of continuousservice prior to 22.01.2001 as per the revised Policy of theDGovernment of Punjab for regularization of work-charged,daily wage, and other similar categories of employees.

The Respondent had failed to produce any evidencewhatsoever to support his claim for regularization.

5.2. The Respondent had sought to have his name included inEthe final list recommended for regularization by colludingwith certain officials of the Appellant – Authority, who hadinterpolated his name in the final list forwarded to theAuthority.

5.3. The Appellant – Authority has filed a copy of the originalFlist dated 12.09.2000 prepared by the Divisional Engineer,Mohali. The said list included the names of 21 employeeswhose names were initially recommended for regularization.

A perusal of the list dated 12.09.2000 reveals that theRespondent’s name was initially not recommended forGregularization. However, in the final list forwarded to theAppellant – Authority, the Respondent’s name wasinterpolated.

5.4. An enquiry was duly conducted to determine whetherwrong information had been supplied by the concernedofficials of the Authority, so that the Respondent could getthe benefit of regularization.

The enquiry conducted by the Appellant – Authorityrevealed that the officials were guilty of supplying wronginformation to the authorities regarding the period of servicerendered by some daily wagers, including the Respondent.The officials had failed to verify the information provided,before forwarding it to the Authority. As a consequence,punitive orders were passed against each of the officials.

In these circumstances, the Respondent was disentitledfrom getting the benefit of a regular appointment with theAppellant – Authority, in the absence of fulfilling the prerequisite requirement.

5.5. It is well settled that an order of regularization obtained bymisrepresenting facts, or by playing a fraud upon thecompetent authority, cannot be sustained in the eyes of law.[2]

In Rajasthan Tourism Development Corporation &Anr. v. Intejam Ali Zafri,[3] it was held that if the initialappointment itself is void, then the provisions of the IndustrialDisputes Act, 1947 are not applicable for terminating theservices of such workman.

In a similar case, this Court in Bank of India v. AvinashD. Mandivikar,[4] held that since the respondent had obtainedhis appointment by playing fraud, he could not be allowedto get the benefits thereof.

6. In the present case, the Single Judge had held that “rightly orwrongly”, the Respondent had obtained regularization, and was thereforeentitled to a disciplinary enquiry. The Division Bench affirmed theJudgment of the Single Judge.

6.1. The High Court however failed to appreciate that thedecision in Managing Director, ECIL, Hyderabad (supra)

2Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363.

3(2006) 6 SCC 275.

4(2005) 7 SCC 690.

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is applicable to “employees” of Government Departments.Since the very appointment of the Respondent on regularbasis was illegal, he could not be treated as an “employee”of the Appellant – Authority.

In Rupa Rani Rakshit & Ors. v. Jharkhand GraminBBank & Ors.,[5] this Court held that service rendered inpursuance of an illegal appointment or promotion cannot beequated to service rendered in pursuance of a valid andlawful appointment or promotion.

6.2. The illegality of such an appointment goes to the root of theCRespondent’s absorption as a regular employee. TheRespondent could not be considered to be an “employee”,and would not be entitled to any benefits under theRegulations applicable to employees of the Appellant –Authority.

Therefore, the High Court erroneously placed relianceon the decision in Managing Director, ECIL, Hyderabad(supra), which would not be applicable to the facts of thepresent case.

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7. The question of holding disciplinary proceedings as envisagedEunder Article 311 of the Constitution, or under any other disciplinaryrules did not arise in the present case since the Respondent was admittedlynot an “employee” of the Appellant – Authority, and did not hold a civilpost under the State Government.[6] He was merely a daily wager on themuster rolls of the Appellant – Authority.

8. It is abundantly clear from the facts of the case, and the materialon record that the regularization of the services of the Respondent wasillegal and invalid. The Respondent was provided a full opportunity toadduce evidence to establish that he had 3 years’ continuous serviceprior to 22.01.2001. However, he failed to furnish any proof whatsoeverto substantiate his claim.

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9. In light of the aforesaid discussion, the present Civil Appeal isallowed, and the Order dated 09.07.2018 passed by the Division Benchof the Punjab & Haryana High Court is set aside.

5(2010) 1 SCC 345.

6The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352;HSuperintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335.

The appointment of the Respondent on regular basis was invalidAsince the Respondent did not have the pre-requisite experience of 3years’ continuous service prior to 22.01.2001.

The Respondent had sought to secure regularization on the basisof interpolation in the final list of employees recommended forregularization. Such an appointment would be illegal and void ab initio,and cannot be sustained.

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The Appellant – Authority rightly terminated the Respondent videOrder dated 22.05.2003.

The Respondent is however entitled to withdraw the amount ofRs. 25,000/- towards Costs, deposited by the Appellant – Authoritypursuant to the Interim Order dated 22.11.2018 passed by this Court.The Registry is directed to release the said amount in favour of theRespondent.

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Pending applications, if any, are accordingly disposed of.

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Ordered accordingly.

Kalpana K. Tripathy

Appeal allowed.

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