IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
ORDER
IN
S.B. Civil Writ Petition No.2034/1997
{Mahendra Singh and Navratan Lal Regar Vs. The State of Rajasthan and Others}
Date of Order ::: 21.01.2010
Present
Hon'ble Mr. Justice Mohammad Rafiq
Shri Vigyan Shah for
Shri Mahendra Shah, Counsel for petitioners
Shri S.D. Khaspuria, Additional Government Counsel for respondents
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//Reportable//
By the Court:-
Petitioners, namely, Mahendra Singh and Navratan Lal Regar, have filed this writ petition challenging the order dated 10.03.1997 (Annexure-1), by which the Chief Executive Officer, Zila Parishad, Ajmer directed the Development Officer, Panchayat Samiti, Arai, Ajmer, to terminate their services. The petitioners have further prayed that the respondents be directed to regularise their services pursuant to earlier decision dated 26th August, 1991, of this Court rendered in S.B. Civil Writ Petition No.5221/1990, which was filed on their behalf by Hand pump Workers Union (leading case being S.B. Civil Writ Petition No.4656/1990 Radhey Shyam Dhobi Vs. Stae of Rajatshan & Others.
Factual matrix of the case is that petitioner No.1, Mahendra Singh, was initially appointed on the post of Hand pump Mistry on 09.02.1984 and petitioner No.2, Navratan Lal Regar, was initially appointed on the post of Hand pump Mistry on 09.06.1986. Number of writ petitions were filed before this Court by and on behalf of hand pump mistries in the year 1990 and 1991. A bunch of nine writ petitions was allowed by this Court vide its common judgment dated 26.08.1991, leading case being S.B. Civil Writ Petition No.4656/1990 Radhey Shyam Dhobi Vs. State of Rajasthan & Others. The petitioners were members of Hand Pump Workers Union and the aforesaid Union, on their behalf, filed S.B. Civil Writ Petition No.5221/1990, which was also decided by the said common judgment dated 26.08.1991, wherein this Court directed the respondents to pay to the petitioners minimum wages as prescribed by the Government of Rajasthan to the members of the petitioner union with effect from 01.01.1991 and to formulate a scheme for regularisation of the services of the hand pump mistries employed in various panchayat samitis in the State of Rajasthan within a period of six months. The Development Department of the Government of Rajasthan issued a detailed guideline vide order No.F.13(147)/Legal/XI/ HC/94/382/Jaipur, dated 30.12.1995.
According to the petitioners, the aforesaid judgment dated 26.08.1991 of the Single Bench was upheld by the Division Bench dismissing Special Appeal filed there-against by the State of Rajasthan. Subsequently, the State Government preferred bunch of Special Leave Petitions (C) No.409-410/1995, one of them was titled as State of Rajasthan & Others Vs. Ratan Lal Gohar etc. etc., against the judgment of the Division Bench and the Hon’ble Supreme Court dismissed those SLPs vide its judgment dated 25.08.1995.
Instead of regularising services of the petitioners, the respondents suddenly issued an order No.96-97/2005, dated 10.03.1997, whereby the Chief Executive Officer of Zila Parishad, Ajmer, directed the Development Officer, Panchayat Samiti, Arai, Ajmer, to terminate their services. Hence, this writ petition.
This Court, while issuing notice of the writ petition on 07.04.1997, stayed operation of the impugned order dated 10.03.1997. The said interim stay order was subsequently made absolute on 12.08.2005 and since then the stay order has remained operative.
Shri Vigyan Shah, learned counsel for the petitioners, has argued that the impugned order dated 10.03.1997 is absolutely arbitrary and illegal, and also violative of Articles 14 and 16 of the Constitution of India. The intended termination of the petitioners by the respondents is contrary to the mandatory direction contained in the judgment of this Court in Radhey Shyam Dhobi’s case (Supra), which required the State of Rajasthan to frame a scheme for regularisation of the services of the petitioners; the judgment of this court dated 26.08.1991 has attained finality, as the same has been upheld by the Division Bench as well as by the Hon’ble Supreme Court, and thus the matter cannot be reopened by the respondents.
The learned counsel for the petitioners further submitted that the plea set up by the respondents in their counter-affidavit that the Full Bench decision of this Court has reversed the view earlier taken by the Single Bench in Radhey Shyam Dhobi’s case (supra) vide its judgment dated 26.08.1991, by holding that there existed no relationship of master and servant between the petitioners and the respondents because all the hand pump mistries were appointed on contract basis, is wholly untenable; the aforesaid full bench decision of this Court was not approved by the Hon’ble Supreme Court, which dismissed SLP (C) No.10326/1992, filed by the State of Rajasthan, vide its judgment dated 10.01.1994. Reference to the Full Bench was made because of conflict of opinions between two Division Benches of this Court as to whether there existed a relationship of master and servant between the hand pump mistries and the respondents. The Full Bench, though concurred with the view that there did not exist master and servant relationship. But the Hon’ble Supreme Court dismissed SLP filed against the judgment where the view was taken that there did not exist relationship of master and servant. After the Full Bench decision of this Court, the respondents filed SLP before the Supreme Court seeking review of the judgment of the Division Bench expressing a contrary opinion, solely on the ground that the view taken in Radhey Shyam’s case had since been overruled. The aforesaid SLPs (C) No.409-410/1995, along-with a bunch of similar SLPs, were rejected by a detailed speaking order of the Hon’ble Supreme Court, wherein it was held that there existed relationship of master and servant between the parties and that similar SLP (C) No.10326/1992 Panchayat Samiti Balsara, Jodhpur Vs. Amrit Lal & Another, of the State Government, has already been dismissed on 10.01.1994. The Full Bench decision on which reliance was placed by the State Government, thus by necessary implication stood overruled.
The learned counsel for the petitioner cited the judgment dated 25.01.1999 passed by a Coordinate Bench of this Court in S.B. Civil Writ Petition No.204/1997 Gokul Chand Meena Vs. State of Rajasthan & Others, whereby similar writ petition was allowed. D.B. Civil Special Appeal No.493/1999 filed there-against by the State of Rajasthan, was dismissed by the Division Bench vide its order dated 16.05.2002. The learned counsel for the petitioner also cited judgment dated 28.04.2005 of the Coordinate Bench of this Court in S.B. Civil Writ Petition No.3071/2001 Rajasthan Hand pump Mistry Karmchari Sangh INTUC Vs. The State of Rajasthan & Others 2005 (3) WLC (Raj.) 310, wherein termination order passed by the Chief Executive Officer, in similar circumstances directing the Development Officer of Panchayat Samiti, Bichhiwara, District Dungarpur, was set-aside.
Shri S.D. Khaspuria, learned Additional Government Counsel, appearing on behalf of the respondents, opposed the writ petition and submitted that the present writ petition is not maintainable because the petitioner has an alternative and efficacious remedy before the Labour Court/Industrial Tribunal. The Chief Executive Officer in the impugned order, had merely directed that services of the petitioners be terminated by making compliance of the provisions of Sections 25F and 25G of the Industrial Disputes Act, 1947.
It is submitted that as per the Full Bench decision of this Court in the case of Radhey Shyam Dhobi, there did not exist any relationship of master and servant between the petitioners and the respondents, no direction can be issued for regularisation of the services of the petitioners, in view of the judgments of the Hon’ble Supreme Court in State of Karnataka v. Umadevi (2006) 4 SCC 1 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1. It is, therefore, prayed that the writ petition be dismissed.
I have given my anxious consideration to the rival submissions and perused the material available on the record.
In the normal course, in view of the ratio of the decision of the Hon’ble Supreme Court in the case of State of Karnataka v. Umadevi (Supra), this Court would not call upon the respondents to regularise services of those appointed on daily wages/contract basis but, in the instant case, rights of the petitioners stood crystallized by way of judgment of the Coordinate Bench of this Court in Radhey Shyam Dhobi’s case (supra). The judgment aforesaid, delivered by His Lordship Hon’ble Mr. Justice G.S. Singhvi (as His Lordship then was), required the respondents to pay minimum wages as declared by the Government of Rajasthan, to the petitioners therein and the members of the petitioner-Union with effect from 01.01.1991. The respondents were, however, directed to formulate a scheme to regularise the services of hand pump mistries in the State of Rajasthan within a period of six months and then take steps for regularization of their services within next two months. The claim of the petitioners however for grant of salary at par with the mistries in public Health & Engineering Department, was rejected. As already noticed above, the SLP (C) No.409-410/1995 State of Rajasthan & Others Vs. Ratan Lal Gohar & Others, has already been dismissed by the Hon’ble Supreme Court by the following order:-
Delay condoned.
Having heard learned counsel for the parties we are of the opinion that these petitions must fail. The main contention was that the impugned order was passed following the decision of the Division Bench of the High Court of Rajasthan in State of Rajasthan Vs. Radhey Shyam wherein the view taken was that there existed a master and servant relationship between the State and the respondents. However, another Division Bench of the High Court had taken a contrary view. There was a conflict to resolve it. A Full Bench was constituted and that Full Bench rendered its judgment on August 30, 1993 holding that there was no relationship of master and servant and, therefore, the employees could not be categorised as workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and hence set aside the reliefs granted in regard to regularisation etc. It was, therefore, argued by the learned counsel for the State that since the impugned judgment of the Division Bench relied on Radhey Shyam’s case which was since overruled by the Full Bench of the High Court the impugned judgment ought to have been reviewed by the High Court when a review was sought on that ground but the High Court did not do so holding that there was no error apparent on the face of the record. The learned counsel for the respondents in some of the petitions, Mr. Jain invited our attention to the explanation in order XLVII, Rule 1 to contend that the subsequent over-ruling of the decision by the Full Bench could not be made a ground for review. However, Mr. Jitendra Sharma invited our attention to a decision of this Court in SLP (C) No.10326/92 dated 10.01.94 wherein while dealing with a similar case this Court came to the conclusion that there existed a relationship of master and servant and hence the respondents fell within the definition of a workman in Section 2(s) of the I.D. Act. This Court was also conscious of the difficulties that were likely to be faced having regard to the working hours etc. of which the respondents were subjected but that did not deter the Court from granting the relief on the premise that the respondents were workmen. This decision of the Court in SLP (C) No.10326/92 Panchayat Samiti Balsara, Jodhpur Vs. Amrit Lal & Another by necessary implications overruled the view taken by the Rajasthan High Court on which reliance is placed. That being so, there would be no question of reviewing the impugned judgment of the Division Bench solely on the ground that the view taken in Radhey Shyam’s case had since been overruled. That being so, we see no merits in these Special Leave Petitions.
The order aforesaid of the Hon’ble Supreme Court conclusively held that there existed relationship of master and servant and hence the original petitioners would fall within the definition of workmen under Section 2(s) of the Industrial Disputes Act, 1947 (for short, ‘the Act of 1947’). The Hon’ble Supreme Court held that decision of the Full Bench of this Court on which reliance has been placed by the respondents to justify the impugned order, stood overruled by necessary implication. While in the impugned order, the respondents have referred to the order dated 28.02.1996 for removing such hand pump mistries by making compliance of the provisions of Sections 25F and 25G of the Act of 1947, the Development Department of the Government of Rajasthan itself has issued the order for implementing the judgment of this Court in Radhey Shyam Dhobi’s case (Supra) by formulating a scheme of their regularisation. According to this order, those hand pump mistries, who completed two years or more service, were held entitled to be fixed in the pay scale of Rs.750-940, and on completion of two years of service, were directed to be regularised. This order was relied upon by the Coordinate Bench of this Court in Gokul Chand Meena’s case and that judgment was upheld by the Division Bench also. Similar order passed by the Chief Executive Officer, Zila Parishad, based on the afore-referred to direction of the State Government, was set-aside by the Coordinate Bench of this Court in Rajasthan Hand pump Mistry Karmachari Sangh INTUC’s case (supra). Ratio of the judgment of the Supreme Court in the case of State of Karnataka v. Umadevi (supra) cannot come in the way of the decision because rights of the petitioners stood should crystallized in the judgment of Radhey Shyam Dhobi’s case, which the respondent decided to implement and obviously because they had been left with no choice because of dismissal of their Special Leave Petition by the Hon’ble Supreme Court. The order of this Court in Radhey Shyam Dhobi’s case (supra) thus attained finality.
Even otherwise the petitioner No.1 has been working with the respondents since 09.02.1984 and the petitioner No.2 has been working since 09.06.1986. Thus, both of them had already served the respondents for more than 10 years at the time of passing of the impugned order dated 10.03.1997. By virtue of the interim order passed by this Court on 07.04.1997, they were ordered to be continued to work with the respondents thereafter. In this manner, they have served the respondents for last two and a half decades.
When the respondents failed to persuade the Hon’ble Supreme Court to reverse the judgment of this Court by which certain rights accrued to the petitioners, they cannot be permitted to reopen such judgment which has attained finality between the parties creating a right in favour of the petitioners to get regular pay scale and regularisation of their services as per the scheme which the respondents framed pursuant to the judgment of this Court in Radhey Shyam Dhobi’s case (supra)
In view of the above discussion, the present writ petition deserves to succeed and is accordingly allowed. The impugned order dated 10.03.1997 (Annexure-1) is quashed and set-aside. The respondents are directed to consider case of the petitioners for grant of regular pay scale to them and regularisation of their services in terms of the order No.F.13(147)/Legal/XI/HC/94/ 382/Jaipur, dated 30th of December, 1995, issued by the Development Department of the Government of Rajasthan, and then to pass appropriate order accordingly.
Compliance of this judgment be made within a period of three months from the date its copy is served upon the respondents.
(Mohammad Rafiq) J.
//Jaiman//