Haryana Rajya Sainik Board vs Mohan Lal & Anr

Mohan Lal & Anr. ..... Respondents

JUDGMENT

Lokeshwar Singh Panta, J.

1. Delay condoned.

2. Leave granted.

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3. This appeal arises out of judgment and order dated

26.04.2005 passed by the Division Bench of the High Court of

Punjab and Haryana at Chandigarh in CWP No.

563/2003 and order dated 27.09.2005 in Review Application

No. 236/2005. By the impugned order, the High Court

allowed the writ petition of Mohan Lal - the respondent herein

and directed the appellant to regularise his services and

granted him all benefits as a regular employee. The review

petition filed by the appellant-Haryana Rajya Sainik Board-

cum-Defence & Security Relief Fund & Member Management

Committee against the order of the High Court in the said writ

petition was dismissed.

4. Briefly stated the facts of the case are that the appellant-

Haryana Rajya Sainik Board-cum-Defence & Security Relief

Fund & Member Management Committee (hereinafter referred

to as "the Committee") is a social welfare organization

registered as a Society under the Societies Registration Act,

1860. The aim, object and purpose of the Committee are to

look after the welfare of war widows, their dependents, ex-

servicemen, disabled armed officials, their dependents and

2 dependents of the serving officials. The appellant-Committee

does not receive any grant from the Central Government. It

receives its finance from the Defence Security Relief Fund

which had been raised in the years 1965 and 1972 out of

public donations during declaration of hostilities between

India and Pakistan. The grant-in-aid is being provided by

Haryana Government only to augment the Defence and

Security Relief Fund [for short `DSR Fund'].

5. The appellant-Committee on 01.10.1991 appointed

Mohan Lal-respondent as Mali on daily wage. As per the

terms and conditions of the letter of engagement placed on

record of this appeal, the services of the respondent were

liable to be terminated at any point of time. The services of

the respondent were terminated with effect from 27.02.1993

being temporary in nature.

6. The respondent claimed reference under the Industrial

Disputes Act, 1947 [hereinafter referred to as `the I.D. Act']

alleging that his services were terminated without following

the provisions of Section 25-F of the I.D. Act. The Haryana

3 Government vide Notification No. 12307 dated 22.01.1994

made the following reference to the Labour Court:-

"Whether the termination of services of Shri Mohan Lal is valid and justified? If not so, to what relief is he entitled?"

7. The Additional District and Sessions Judge, Presiding

Officer, Labour Court, Ambala, by Award dated 02.02.1999 in

Reference No. 10/1994 held the termination of the services of

the respondent illegal and unjustified and accordingly,

directed his reinstatement with continuity in service.

However, the claim with regard to back wages was given up by

the respondent, therefore, he was not held entitled to back

wages.

8. Thereafter, the respondent No. 1 filed writ petition in the

year 2003 [W.P. No.563/2003] before the High Court of

Punjab and Haryana at Chandigarh praying for issue of

mandamus directing the appellant-Committee to regularise his

services. The Division Bench of the High Court, on the basis

of Policy Instructions dated 07.03.1996 issued by the State of

Haryana with regard to regularizing the work

4 charged/casual/daily-rated employees of the departments of

the State Government, directed the appellant-Committee - "to

regularize the services of respondent and, accordingly, grant

him other benefits as a regular employee". The appellant-

Committee being dissatisfied with and aggrieved by the order

of the Division Bench filed a review application before the High

Court, which came to be dismissed on September 27, 2005.

Hence, the appellant-Committee has filed this appeal by way

of special leave petition challenging the correctness and

validity of the orders of the High Court.

9. We have heard Mr. Alok Sangwan, learned counsel for

the appellant-Committee and Mr. Prem Malhotra, learned

counsel for the respondent - Mohan Lal, and with their

assistance perused orders of the High Court and other

material on record.

10. The defence of the appellant-Committee in its counter

affidavit filed before the High Court in opposition to the writ

petition was that the appellant-Committee was registered as a

Society in the backdrop of the following eventualities:-

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"In 1965, large scale incursion into Jammu and Kashmir by subversion elements from Pakistan flared into declaration of hostilities between India and Pakistan. The patriotic fervour of our people rose to the occasion and they offered large quantities of cash and valuables. In the Punjab (which then included Haryana) the general response was overwhelming. A fund, known as `Punjab Defence and Security Fund' was instituted to account for this donation. The initial target was set at Rs. 50 lakhs, but by 15.11.1966, the collection by the people approximated Rs. 3.75 crores.

In, 1966, the composite Punjab was re- organised into the new states of Punjab and Haryana. Haryana's share of the fund was transferred to it for the benefits of war widows and ex-servicemen belonging to Haryana and their families. The transferred fund came to be known as the Haryana Defence and Security Relief Fund now DSR Fund in short. Later on the contribution of this Fund was made by the people of Haryana during 1971 war. To manage the DSR Fund, a Committee was set up."

11. It was the specific and categorical case of the appellant-

Committee that the DSR Fund is neither a Government

Department nor a statutory body or an instrumentality of the

State. It is a Committee which comprises the Chief Minister of

6 the State as its Chairman and other unspecified number of

officials and non-officials as its Members. Its strength and

composition continues to be ad hoc from the beginning. The

DSR Fund gets aid from the Haryana Government only to

augment the DSR Fund. Haryana Defence and Security Relief

Fund Committee has been registered under the Societies

Registration Act, 1860.

12. The appointment of the respondent as `Mali' (Gardener)

by the Assistant Manager, Sainik Pariwar Bhawan,

Chhachhrauli, with effect from 01.10.1991 (FN) as per the

daily wage fixed by the Deputy Commissioner is not in

dispute. The services of the respondent were terminated on

27.02.1993 in terms of the engagement letter. Against the

termination order, the respondent raised the industrial

dispute which was referred to the Labour Court by the State of

Haryana and finally the Labour Court, as stated above,

directed the appellant-Committee to reinstate the respondent

with continuity in service without back-wages. Before the

High Court, it was the categorical defence of the appellant-

Committee that the respondent was appointed as Mali for a

7 temporary period at the rate fixed by the Deputy

Commissioner, Yamuna Nagar. The respondent, in

compliance to the Award of the Labour Court, has been

reinstated by the appellant-Committee. It was also contended

that the appellant-Committee has not received any grant from

the Central Government or the State Government of Haryana,

but it receives its finances from the DSR Fund which has been

raised out of public donations received in the wake of 1965

and 1972 wars with Pakistan. However, the grant-in-aid is

being provided by Haryana Government only to augment the

DSR Fund which was set up for the welfare of ex-servicemen

and their dependents, war widows, soldiers' widows and their

dependents, etc. etc. The appellant-Committee also stated

that none of the daily wagers working with the Committee

have been regularized by the appellant-Committee against the

vacancy which is reserved only for ex-servicemen and war

widows, etc. It was also submitted that no other employee

was selected or engaged in place of the respondent after the

Award of the Labour Court which was complied with by the

appellant-Committee.

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13. In the factual situation of the case and legal proposition

governing the terms and conditions of the services of the

respondent, in our considered opinion, the High Court has

misapplied the Policy Decision/Instructions dated 07.03.1996

issued by the Government of Haryana with regard to the

regularization of work-charged / daily wage / daily-rated

employees employed by the various Departments of the State

to the claim of the respondent. We have gone through the

said Policy decision which is placed on record of this case as

Annexure-P3. The Policy decision reveals that there are three

categories of employees, namely, work-charged employees,

casual daily wage employees and daily-rated employees (class-

III) of the State Government who are covered under the said

Policy decision. The policy decision provides that the casual

daily-rated employees, who have completed five years service

on 31st January, 1996, shall be regularized provided they have

worked for a minimum period of 240 days in each year and

the break in service in any year is not more than one month at

the time. A further condition stipulated was that such

employees who have worked on different posts having different

9 designations in the same Department shall also be regularized

if they fulfill their conditions. On regularization, they shall be

put in the time-scale of pay applicable to the lowest Group `D'

cadre in the Government and they would be entitled to all

other allowances and benefits available to regular Government

Servants of the corresponding grade.

14. We are not in a position to accept the finding of the

learned Judges of the High Court that the services of the

respondent are governed by the said Policy decision of the

State of Haryana in the matter of regularization. The

respondent was not an employee of the State of Haryana in

Group `C' or Group `D' posts nor was he engaged in any

Department or other authority of the State on daily wage by

the competent authority of the State Government or the

authority, as the case may be. Indisputably, he was

appointed by the appellant-Committee as Mali on daily wage

and not in the cadre of ex-servicemen for which the vacancy is

reserved in terms of the Sainik Parivar Bhawan's Haryana

Service (Common Cadre) Rules, 1999. Thus, the High Court

gravely erred by holding that the Policy decision of the State of

10 Haryana dated 07.03.1996 will be ipso facto applicable to the

employees of the appellant-Committee without proving that

the same has been adopted by the appellant-Committee and

made applicable to its employees. The appellant-Committee

has framed its own Service Rules called `The Sainik Parivar

Bhawan's Haryana Service (Common Cadre) Rules, 1999', for

regulating the recruitment and conditions of service of the

persons appointed to Sainik Parivar Bhawan's Haryana.

Details of posts authorized in Saink Parivar Defence

Organisation prescribing qualifications/experience required

and pay equalency are mentioned in Appendix `A' of the said

Rules. The post of Peon-cum-Mali is shown at Serial No. 22

of Appendix `A' for which the essential qualification is 5th class

with two years experience of gardening. The footnote provides

that certain posts, including the post of Peons and Peon-cum-

Mali, are reserved for ex-servicemen/war widows and widows

only. In the teeth of the separate service rules of the

appellant-Committee framed for governing the service

conditions of its employees, the High Court was not justified

in applying the Policy decision/Instruction of 1996 of the

11 State Government to the employees of the appellant, which

undoubtedly is an independent body registered under the

Societies Act exclusively for the welfare of the widows and

their dependents (males/females) and dependents of ex-

servicemen and serving Armed Forces personnel, etc. of

Haryana.

15. In the facts and circumstances narrated hereinabove,

the judgment of the High Court directing the appellant-

Committee "to regularize the services of the respondent and,

accordingly, grant him all other benefits of regular employee"

is unjustified and unsustainable both on facts and in law and

the same deserves to be set aside on this short ground

without entering upon the merits of other issues involved in

regard to the power of the High Court to issue mandamus in

mandatory form directing regularization of the respondent

against the service rules of the appellant-Committee and

granting him all benefits of a regular employee.

16. In the result, for the aforesaid reasons, the judgment

and order dated 26.04.2005 of the Division Bench passed in

CWP No. 563/2003 and order dated 27.09.2005 dismissing

12 the Review Application No. 236/2005 in the said writ petition,

are quashed and set aside. The writ petition filed by the

respondent would stand dismissed. The appeal is accordingly

allowed.

17. In the facts and circumstances of the case, the parties

are left to bear their own costs.

........................................J. (R. V. Raveendran)

........................................J. (Lokeshwar Singh Panta)

New Delhi, September 11, 2008.

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