{"id":245982,"date":"2006-05-05T00:00:00","date_gmt":"2006-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-council-sujanpur-vs-surinder-kumar-on-5-may-2006"},"modified":"2015-12-15T23:08:00","modified_gmt":"2015-12-15T17:38:00","slug":"municipal-council-sujanpur-vs-surinder-kumar-on-5-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-council-sujanpur-vs-surinder-kumar-on-5-may-2006","title":{"rendered":"Municipal Council, Sujanpur vs Surinder Kumar on 5 May, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Municipal Council, Sujanpur vs Surinder Kumar on 5 May, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  2474 of 2006\n\nPETITIONER:\nMunicipal Council, Sujanpur\n\nRESPONDENT:\nSurinder Kumar\n\nDATE OF JUDGMENT: 05\/05\/2006\n\nBENCH:\nS.B. Sinha & P.K. Balasubramanyan\n\nJUDGMENT:\n<\/pre>\n
S.B. SINHA, J.\n<\/p>\n
J U D G M E N T
\n(Arising out of SLP(C ) No. 17977 OF 2004)<\/p>\n
Leave granted.\n<\/p>\n
The appellant herein being aggrieved by and dissatisfied with the
\njudgment and order dated 29.4.2004 passed by a Division Bench of the
\nPunjab and Haryana High Court at Chandigarh in Civil Writ Petition No.
\n4988 of 2002 affirming the award dated 22.11.2001 of the Labour Court,
\nGurdaspur is before us.  It is not in dispute that the Appellant herein is a
\nstatutory body and being a local authority, governed by the Punjab
\nMunicipal Act.  The terms and conditions of service, including recruitment
\nof its employees, are governed by statutory rules.\n<\/p>\n
The respondent herein was appointed on 1.4.1994.  He continued to
\nwork up to 31.7.1996.  His services were terminated on 16.7.1997 by issuing
\na notice of termination.  Questioning the validity and legality thereof, an
\nindustrial dispute was raised which culminated in a reference made by the
\nappropriate governments under Industrial Disputes Act (`the Act’) in
\nexercise of its power under Section 10 (1)(c) thereof the following dispute to
\nthe Labour Court, Gurdaspur:\n<\/p>\n
“Whether termination of services of Shri Surinder Kumar,
\nworkman is justified and in order?  If not, to what\/exact amount
\nof compensation is he entitled?”\n<\/p>\n
A plea was raised in the said proceedings on behalf of the appellant
\nherein that the respondent was appointed on a supervisory post and, thus,
\nwas not a `workman’ within the meaning of Section 2(S) of the Act.\n<\/p>\n
It is not in dispute that the respondent was appointed on daily wages.
\nBefore the Labour Court, the appellant raised a plea that the respondent was
\nappointed on the post of Supervisor, on the recommendation of one Shri R.S.
\nPuri, M.L.A., Sujanpur and then a Minister in the Government of Punjab.
\nThe Labour Court by reason of the impugned award, inter alia, held that
\nalthough the second respondent was appointed with the designation of a
\nSupervisor and was expected to look after the development work being
\ncarried out by the appellant and other construction works under the Nehru
\nRojgar Yojana, he was merely discharging the duties of a workman.\n<\/p>\n
It was held by the Labour Court that the respondent completed 240
\ndays of work within a period of twelve months preceding his termination.
\nThe Labour Court proceeded on the basis that the workman having
\ncompleted 240 days of work in a calendar year, it was the bounden duty of
\nthe Appellant to produce the entire relevant records but the same had not
\nbeen done.  It is not in dispute that the attendance records of March 1994
\nand from April 1994 to February 1996 were produced but the attendance
\nregisters from March 1996 onwards were not produced.  It, however, does
\nnot appear from the impugned award that the respondent had called for the
\nrecords from the office of the appellant.\n<\/p>\n
 The Labour Court upon arriving at a finding that in terminating the
\nservices of the respondent, the appellant had not complied with the statutory
\nrequirements contained in Section 25F of the Industrial Disputes Act as no
\ncompensation had been paid to him in terms thereof, the respondent shall be
\ndirected to be reinstated in service with full back wages and allied benefits
\nfrom the date of termination i.e. July 1997 till actual reinstatement.
\nA writ petition filed before the High Court by the appellant herein
\nagainst the said award was dismissed.\n<\/p>\n
Before the High Court, a specific plea was raised by the Appellant
\nthat the initial appointment of the respondent was contrary to the recruitment
\nrules.  The High Court’s attention was further drawn to the fact that the
\nrespondent was appointed in a Supervisory capacity to look after the
\nconstruction work of the MC building and other construction works under
\nthe Nehru Rojgar Yojana.\n<\/p>\n
The High Court, however, rejected the said contentions of the
\nAppellant relying on or on the basis of the findings of the Labour Court that
\nthe work for which the respondent was appointed had been existing.  It
\nopined that its jurisdiction in the matter of issuing a writ of certiorari is
\nlimited.  It further refused to go into the question as regards the payment of
\nentire back wages stating that the appellant herein had neither pleaded nor
\nproduced any evidence to show that the respondent was gainfully employed
\nafter termination of his service.\n<\/p>\n
The High Court’s jurisdiction to issue a writ of certiorari though is
\nlimited, a writ of certiorari can be issued if there is an error of law apparent
\non the face of the record.  What would constitute an error of law is well
\nknown.  In the Judicial Review of Administrative Action, IVth edition p.136,
\nS.A De Smith has summed up the position:-\n<\/p>\n
“The concept of error of law includes the giving of reasons that
\nare bad in law or (if there is a duty to give reasons) inconsistent,
\nintelligible or, it would seem, substantially inadequate.  It
\nincludes also the application of a wrong legal test to the facts
\nfound, taking irrelevant considerations into account and failing
\nto take relevant considerations into account, exercising a
\ndiscretion on the basis of any other incorrect legal principles,
\nmisdirection as to the burden of proof, and wrongful admission
\nor exclusion of evidence, as well as arriving at a conclusion
\nwithout any supporting evidence.”\n<\/p>\n
 \t[See also S.N. Chandrashekar and Anr. v. State of Karnataka and Ors.<\/a>
\n2006 (2) SCALE 248 and Bombay Dyeing & Mfg. Co. Ltd. v. Bombay
\nEnvironmental Action Group & Ors.,<\/a> 2006 (3) SCALE 1].\n<\/p>\n
The Labour Court and the High Court also proceeded wrongly on the
\npremise that the burden of proof to establish non-completion of 240 days of
\nwork within a period of twelve months preceding the termination, was on the
\nmanagement.  The burden was on the workman.  [See U.P. State Brassware
\nCorporation & Ors. v. Udit Narain Pandey, JT<\/a> 2005 (10) SC 344 and State
\nof M.P. v. Arjan Lal Rajak,<\/a> (2006) 2 SCC 610].\n<\/p>\n
Equally well settled is the principle that the burden of proof, having
\nregard to the principles analogus to Section 106 of the Evidence Act that he
\nwas not gainfully employed, was on the workman.  [See Manager, Reserve
\nBank of India, Bangalore v. S. Mani & Ors.,<\/a> (2005) 5 SCC 100] <\/p>\n
It is also a trite law that only because some documents have not been
\nproduced by the management, an adverse inference would be drawn against
\nthe management.  [See S. Mani (supra)] <\/p>\n
Apart from the aforementioned error of law, in our considered
\nopinion, the Labour Court and consequently the High Court completely
\nmisdirected themselves insofar as they failed to take into consideration that
\nrelief to be granted in terms of Section 11A of the said Act being
\ndiscretionary in nature, a Labour Court was required to consider the facts of
\neach case therefor. Only because relief by way of reinstatement with full
\nback wages would be lawful, it would not mean that the same would be
\ngranted automatically.\n<\/p>\n
For the said purpose, the nature of the appointment, the purpose for
\nwhich such appointment had been made, the duration\/tenure of work, the
\nquestion whether the post was a sanctioned one, being relevant facts, must
\nbe taken into consideration.\n<\/p>\n
It is not disputed that the appointment of the respondent was not in a
\nsanctioned post.  Being a ‘State’ within the meaning of Article 12 of the
\nConstitution of India, the Appellant for the purpose of recruiting its
\nemployees was bound to follow the recruitment rules.  Any recruitment
\nmade in violation of such rules as also in violation of the constitutional
\nscheme enshrined under Articles 14 and 16 of the Constitution of India
\nwould be void in law. [See M.V. Bijlani v. Union of India & Ors.,<\/a> (2006) 4
\nSCALE 147, State of Punjab v. Jagdip Singh & Ors.,<\/a> 1964 (4) SCR 964 and
\nSecretary, State of Karnataka v. Uma Devi, 2006 (4) SCALE 197].\n<\/p>\n
If a post is not a sanctioned one, again, appointment therein would be
\nillegal.  In M.P. Housing Board & Anr. v. Manoj Shrivastava<\/a> [(2006) 2 SCC
\n702], this Court stated the law in the following words:-
\n“A person with a view to obtain the status of a “permanent
\nemployee” must be appointed in terms of the statutory rules.  It
\nis not the case of the respondent that he was appointed against a
\nvacant post which was duly sanctioned by the statutory
\nauthority or his appointment was made upon following the
\nstatutory law operating in the field.\n<\/p>\n
The Labour Court unfortunately did not advert to the said
\nquestion and proceeded to pass its award on the premise that as
\nthe respondent had worked for more than six months
\nsatisfactorily in terms of clause 2(vi) of the Standard Standing
\nOrders, he acquired the right of becoming permanent.  For
\narriving at the said conclusion, the Labour Court relief only
\nupon the oral statement made by the respondent.\n<\/p>\n
It is one thing to say that a person was appointed on an ad hoc
\nbasis or as a daily-wager but it is another thing to say that he is
\nappointed in a sanctioned post which was lying vacant upon
\nfollowing the due procedure prescribed therefor.\n<\/p>\n
It has not been found by the Labour Court that the respondent
\nwas appointed by the appellant herein, which is “State” within
\nthe meaning of Article 12 of the Constitution, upon compliance
\nwith the constitutional requirements as also the provisions of
\nthe 1972 Act or the Rules and Regulations framed thereunder.”\n<\/p>\n
Yet again, in Haryana State Agricultural Marketing Board v. Subhash
\nChand & Anr.<\/a> [(2006) 2 SCC 794], this Court held:-
\n“In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd Edn.,
\nVol. 4 at p. 4470, the expression “status” has been defined as
\nunder:\n<\/p>\n
“Status” is a much discussed term which, according to
\nthe best modern expositions, includes the sum total of a
\nman’s personal rights and duties (Salmond, Jurisprudence
\n253, 257), or, to be verbally accurate, of his capacity for
\nrights and duties.  (Holland, Jurisprudence 88)<\/p>\n
The status of a person means his personal legal condition
\nonly so far as his personal rights and burdens are
\nconcerned.  Duggamma v. Ganeshayya, AIR at p.101
\n[Evidence Act (1 of 1872), Section 41]<\/p>\n
In the language of jurisprudence `status’ is a condition of
\nmembership of a group of which powers and duties are
\nexclusively determined by law and not by agreement
\nbetween the parties concerned. (Roshan Lal Tandon v.
\nUnion of India).\n<\/p>\n
The word “privilege” has been defined, at p. 3733, as under:\n<\/p>\n
`Privilege is an exemption from some duty, burden, or
\nattendance to which certain persons are entitled; from a
\nsupposition of law, that the stations they fill, or the
\noffices they are engaged in, are such as require all their
\ncare; that therefore, without this indulgence, it would be
\nimpracticable to execute such offices, to that advantage
\nwhich the public good requires.\n<\/p>\n
A right or immunity granted as a peculiar benefit;
\nadvantage or favour; a peculiar or personal advantage or
\nright, especially when enjoyed in derogation of a
\ncommon right.\n<\/p>\n
\t*\t\t\t*\t\t\t*
\nImmunity from civil action may be described also as a
\nprivilege, because the word `privilege’ is sufficiently
\nwide to include an immunity.\n<\/p>\n
\t*\t\t\t*\t\t\t*
\nThe word `privilege’ has been defined as a particular and
\npeculiar benefit or advantage enjoyed by a person..
\n`Privileges’ are liberties and franchises granted to an
\noffence, place, town or manor, by the King’s great
\ncharter, letters patent, or Act of Parliament.\n<\/p>\n
In view of the aforementioned definitions of the expressions
\n“status” and “privilege” it must be held that such “status” and
\n“privilege” must emanate from a statute.  If legal right has been
\nderived by the respondent herein to continue in service in terms
\nof the provisions of the Act under which he is governed, then
\nonly, would the question of depriving him of any status or
\nprivilege arise.  Furthermore, it is not a case where the
\nrespondent had worked for years.  He has only worked, on his
\nown showing, for 356 days whereas according to the appellant
\nhe has worked only for 208 days.  Therefore, the Fifth Schedule
\nof the Industrial Disputes Act, 1947 has no application in the
\ninstant case.  In view of the above, the dispensing with of the
\nengagement of the respondent cannot be said to be unwarranted
\nin law.”\n<\/p>\n
[See also BHEL v. B.K. Vijay & Ors., (2006) 2 SCC 654].\n<\/p>\n
In the instant case, the respondent was appointed in violation of the
\nrules.  He was appointed at the instance of a Member of the Legislative
\nAssembly who was a minister at the relevant time.  No appointment could
\nhave been made at his instance.  No authority howsoever high may be
\ncannot direct recruitment of persons of his choice.\n<\/p>\n
Having regard to the factual circumstances of this case, we are of the
\nopinion that grant of monetary compensation would sub-serve the interests
\nof justice.\n<\/p>\n
We, therefore, allow the appeal and set aside the directions of the
\nLabour Court and direct that in place of the respondent being reinstated with
\nback wages, the Appellant would pay monetary compensation to him,
\nquantified at Rs.50,000\/-.  We make no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Municipal Council, Sujanpur vs Surinder Kumar on 5 May, 2006 Author: S Sinha Bench: S.B. Sinha, P.K. Balasubramanyan CASE NO.: Appeal (civil) 2474 of 2006 PETITIONER: Municipal Council, Sujanpur RESPONDENT: Surinder Kumar DATE OF JUDGMENT: 05\/05\/2006 BENCH: S.B. Sinha & P.K. Balasubramanyan JUDGMENT: S.B. SINHA, J. J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-245982","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMunicipal Council, Sujanpur vs Surinder Kumar on 5 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/municipal-council-sujanpur-vs-surinder-kumar-on-5-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Municipal Council, Sujanpur vs Surinder Kumar on 5 May, 2006 - 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