Punjab Urban Planning and Development Authority vs Karamjit Singh

CIVIL APPEAL NO. 3925 OF 2019 (Arising out of SLP (Civil) No. 29160 of 2018)

Punjab Urban Planning and Development …Appellants Authority & Anr.

Versus

Karamjit Singh …Respondent

JUDGMENT

INDU MALHOTRA, J.

Leave granted.

1. The present Civil Appeal has been filed to challenge the final

Judgment and Order dated 09.07.2018 passed by a Division

Bench of the Punjab & Haryana High Court at Chandigarh,

in LPA No. 894 of 2018.

Signature Not Verified Digitally signed by MUKESH KUMAR Date: 2019.04.15 13:08:19 IST Reason:

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

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2.1. On 01.12.1995, the Respondent was appointed as a

Chowkidar on daily wages by the Appellant – Punjab

Urban Planning and Development Authority. His name

was on the muster rolls till 31.03.1997.

2.2. On 23.01.2001, the Government of Punjab revised the

Policy for regularization of work-charged / daily wage

and other categories of employees.

As per the revised Policy, all the Departments under

the Government of Punjab were directed to prepare lists

of work-charged employees, daily wagers, and other

similar categories of employees, who had completed 3

years of service. From such lists, employees would be

absorbed / regularized against regular posts existing in

each Department, in order of seniority.

2.3. On 26.12.2001, the Appellant – Authority issued an

Office Order regularizing the services of 102 daily

wagers as per the State Government’s revised Policy

dated 23.01.2001.

2.4. The Respondent’s name was included in the Office

Order issued by the Appellant – Authority.

2 Consequently, his services came to be regularized w.e.f.

06.11.2001.

2.5. Subsequently, two employees of the Appellant –

Authority viz. 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. The Respondent was impleaded as a party

in the said Writ Petition. It was alleged that there were

irregularities in the regularization of certain employees,

including that of the Respondent.

2.6. The High Court vide Order dated 01.10.2002, directed

the Appellant – Authority to treat the Writ Petition as a

representation on behalf of the writ petitioners, and

pass a speaking order within 4 months.

2.7. Pursuant to the direction of the High Court, the

Appellant – Authority scrutinized the list of employees

who were regularized vide Office Order dated

26.12.2001. The Authority called for a report from the

Executive Engineer (C/Project – II), Mohali. The report

revealed that the Respondent had not completed the

requisite period of 3 years’ service prior to 22.01.2001.

3 2.8. The Appellant – Authority issued a Show Cause Notice

dated 24.03.2003 to the Respondent directing him to

appear before the Chief Administrator of the Appellant –

Authority on 31.03.2003 for a personal hearing.

2.9. On 31.03.2003 the Respondent appeared before the

Chief Administrator of the Appellant – Authority for the

personal hearing. The Chief Administrator found that

the Respondent failed to furnish any evidence

whatsoever, documentary or otherwise, or any

satisfactory proof of having served the Appellant –

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 the Respondent was not as per the revised

Policy issued by the Government of Punjab on

23.01.2001.

2.10. The Respondent challenged the Order dated 22.05.2003

passed by the Chief Administrator, by way of Writ

Petition No. 8354 of 2003 before the Punjab & Haryana

High Court.

4 The High Court dismissed the Writ Petition vide Order

dated 23.10.2003, and granted the Respondent liberty

to approach the Labour Court for redressal of his

grievances.

2.11. On 20.12.2003, the Respondent raised an industrial

dispute against the Appellant – Authority before the

Additional Labour Commissioner, Punjab. The matter

was referred to conciliation.

Upon failure of the conciliation proceedings, the

dispute was referred to the Industrial Tribunal, Patiala.

2.12. The Respondent submitted that his services had been

illegally terminated by the Appellant – Authority vide

Order dated 21.11.2003. He contended that he had

continuously worked with the Appellant – Authority

from 01.12.1995 till 21.11.2003, and had put in more

than 240 days of service in the last calendar year. The

Respondent alleged that the termination 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

Respondent worked as a daily wager, whose name was

5 borne on the muster rolls. As per the record, there were

breaks in his service from 01.12.1995 till 31.03.1997.

He had put in only 6 months of service prior to

31.03.1997. After 1997, the Respondent was not

employed as a daily wager with the Appellant –

Authority.

It was further submitted that the Respondent’s name

was not included in the original list dated 12.09.2000

forwarded by the Divisional Engineer, PUDA, Mohali to

the Superintending Engineer, PUDA, Mohali.

The Respondent’s name however came to be included

in the final list recommended for regularization, through

his connivance with some officials of the Appellant –

Authority.

2.14. The Industrial Tribunal, Patiala dismissed the Reference

made by the Respondent vide Order dated 15.10.2013.

It was held that since the entry of the Respondent into

service on 26.12.2001 was through wrongful means, his

services were rightly terminated vide Order dated

22.05.2003.

6 2.15. Aggrieved by the Order passed by the Industrial

Tribunal, the Respondent filed Writ Petition No. 21519

of 2014 before the Punjab & Haryana High Court.

A Single Judge of the High Court vide Order dated

07.02.2018, allowed the Writ Petition filed by the

Respondent, and set aside the Order dated 15.10.2013

passed by the Industrial Tribunal, Patiala.

The learned Single Judge held that “rightly or

wrongly” the Respondent’s services had been regularized

on 26.12.2001 under the revised Policy of the State

Government. Thus, permanent status had been given to

the Respondent w.e.f. 26.12.2001.

The learned Single Judge held that it was necessary

for the Appellant – Authority to have issued a charge-

sheet, conduct an enquiry against a permanent

employee, before terminating or dismissing him from

service under the Regulations. Undisputedly, since no

charge-sheet had been issued, or enquiry conducted,

the action of terminating the services of the Respondent

by merely issuing a Show Cause Notice, and granting a

personal hearing was not sufficient compliance with the

7 Regulations. The order of termination dated 22.05.2003,

and the Award of the Industrial Tribunal were set aside.

The learned Single Judge granted liberty to the

Appellant – Authority to take necessary action against

the Respondent under the statutory Regulations. It was

ordered that the Appellant – Authority pass a final order

after conducting 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 to

calculate, and disburse subsistence allowance to the

Respondent from 22.05.2003 onwards, and continue to

disburse the same till conclusion of the disciplinary

proceedings against him.

2.16. Aggrieved by the Order of the learned Single Judge, the

Appellant – Authority filed LPA No. 894 of 2018 before

the Division Bench of the Punjab & Haryana High

Court.

8 The Division Bench dismissed the LPA filed by the

Appellant – Authority vide impugned final Judgment

and Order dated 09.07.2018, and affirmed the Order

dated 07.02.2018 passed by the Single Judge. It was

held that the Punjab Urban Planning & Development

Authority Employees (Punishment and Appeal)

Regulations, 1997 contained provisions for initiation of

regular departmental enquiry before dismissal or

termination of a regular employee. The termination of

the services of the Respondent by mere issuance of a

Show Cause Notice was not only de hors the

Regulations, but also contrary to the principles of

natural justice.

2.17. The Appellant – Authority filed the present Civil Appeal

to challenge the Judgment and Order dated 09.07.2018

passed by the Division Bench of the Punjab & Haryana

High Court.

On 22.11.2018, this Court issued Notice to the

Respondent, subject to the Appellant – Authority

depositing Rs. 25,000/- towards Costs of litigation for

9 the Respondent. The Appellant – Authority deposited

the aforesaid amount in this Court.

3. We have heard Mrs. Rachana Joshi Issar, learned Counsel

for the 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 till 31.03.1997. He had put in only 6

months of service prior to 31.03.1997, and was not in

service thereafter. Therefore, he was not eligible to be

regularized under the State Government’s revised Policy

dated 23.01.2001 which required an employee to have

completed 3 years’ of continuous service prior to

22.01.2001, so as to be eligible for regularization.

It was further submitted that the Respondent had

fraudulently, and in connivance with some officials of

the Appellant – Authority, got his name surreptitiously

included in the final list of employees recommended for

regularization.

10 3.2. The report submitted by the Executive Engineer

(C/Project – II), Mohali to the Chief Administrator

showed that the Respondent had not fulfilled the

mandatory pre-requisite of having served for 3 years’ or

more up till 22.01.2001.

The Chief Administrator vide Order dated 22.05.2003

annulled the Office Order dated 26.12.2001 qua the

regularization of the services of the Respondent.

3.3. It was further submitted that the Appellant – Authority

conducted a disciplinary enquiry against the officials

who had recommended the name of the Respondent for

regularization. The Enquiry Report dated 25.01.2005

found four officials to have supplied wrong information

with respect to the regularization of the Respondent,

and some other daily wagers who had less than 3 years’

service.

Since the appointment of the Respondent on regular

basis was void on account of having been fraudulently

obtained by collusion, the Respondent was not entitled

to the protection under the provisions of the Industrial

Disputes Act, 1947.

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4. Mr. Mukesh Kumar Sharma, learned Counsel appearing on

behalf of the Respondent, submitted that:

4.1. There was no infirmity in the Orders passed by the

Single Judge and Division Bench of the High Court.

4.2. It was submitted that the present case was covered by

the decision in Managing Director, ECIL, Hyderabad &

Ors. v. B. Karunakar & Ors.,1 rendered by a Constitution

Bench of this Court.

5. We have carefully perused the pleadings and the written

submissions made by the parties, and also considered the

submissions made at the oral hearing.

5.1. In the present case, the Respondent had sought to

secure regularization of his services, even though he did

not fulfill the pre-requisite of a minimum of 3 years of

continuous service prior to 22.01.2001 as per the

revised Policy of the Government of Punjab for

regularization of work-charged, daily wage, and other

similar categories of employees.

1 (1993) 4 SCC 727.

12 The Respondent had failed to produce any evidence

whatsoever to support his claim for regularization.

5.2. The Respondent had sought to have his name included

in the final list recommended for regularization by

colluding with certain officials of the Appellant –

Authority, who had interpolated his name in the final

list forwarded to the Authority.

5.3. The Appellant – Authority has filed a copy of the original

list dated 12.09.2000 prepared by the Divisional

Engineer, Mohali. The said list included the names of 21

employees whose names were initially recommended for

regularization.

A perusal of the list dated 12.09.2000 reveals that the

Respondent’s name was initially not recommended for

regularization. However, in the final list forwarded to

the Appellant – Authority, the Respondent’s name was

interpolated.

5.4. An enquiry was duly conducted to determine whether

wrong information had been supplied by the concerned

officials of the Authority, so that the Respondent could

get the benefit of regularization.

13 The enquiry conducted by the Appellant – Authority

revealed that the officials were guilty of supplying wrong

information to the authorities regarding the period of

service rendered 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

disentitled from getting the benefit of a regular

appointment with the Appellant – Authority, in the

absence of fulfilling the pre-requisite requirement.

5.5. It is well settled that an order of regularization obtained

by misrepresenting facts, or by playing a fraud upon the

competent 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 initial

appointment itself is void, then the provisions of the

2 Devendra Kumar v. State of Uttaranchal & Ors. (2013) 9 SCC 363. 3 (2006) 6 SCC 275.

14 Industrial Disputes Act, 1947 are not applicable for

terminating the services of such workman.

In a similar case, this Court in Bank of India v.

Avinash D. Mandivikar,4 held that since the respondent

had obtained his appointment by playing fraud, he

could not be allowed to get the benefits thereof.

6. In the present case, the Single Judge had held that “rightly or

wrongly”, the Respondent had obtained regularization, and

was therefore entitled to a disciplinary enquiry. The Division

Bench affirmed the Judgment of the Single Judge.

6.1. The High Court however failed to appreciate that the

decision in Managing Director, ECIL, Hyderabad (supra)

is applicable to “employees” of Government

Departments. Since the very appointment of the

Respondent on regular basis was illegal, he could not be

treated as an “employee” of the Appellant – Authority.

In Rupa Rani Rakshit & Ors. v. Jharkhand Gramin

Bank & Ors.,5 this Court held that service rendered in

pursuance of an illegal appointment or promotion

4 (2005) 7 SCC 690.

5 (2010) 1 SCC 345.

15 cannot be equated to service rendered in pursuance of a

valid and lawful appointment or promotion.

6.2. The illegality of such an appointment goes to the root of

the Respondent’s absorption as a regular employee. The

Respondent could not be considered to be an

“employee”, and would not be entitled to any benefits

under the Regulations applicable to employees of the

Appellant – Authority.

Therefore, the High Court erroneously placed reliance

on the decision in Managing Director, ECIL, Hyderabad

(supra), which would not be applicable to the facts of

the present case.

7. The question of holding disciplinary proceedings as envisaged

under Article 311 of the Constitution, or under any other

disciplinary rules did not arise in the present case since the

Respondent was admittedly not an “employee” of the

Appellant – Authority, and did not hold a civil post under the

State Government.6 He was merely a daily wager on the

muster rolls of the Appellant – Authority.

6The State of Bihar & Ors. v. Kirti Narayan Prasad, 2018 (15) SCALE 352; Superintendent of Post Offices & Ors. v. R. Valasina Babu, (2007) 2 SCC 335. 16

8. It is abundantly clear from the facts of the case, and the

material on record that the regularization of the services of

the Respondent was illegal and invalid. The Respondent was

provided a full opportunity to adduce evidence to establish

that he had 3 years’ continuous service prior to 22.01.2001.

However, he failed to furnish any proof whatsoever to

substantiate his claim.

9. In light of the aforesaid discussion, the present Civil Appeal is

allowed, and the Order dated 09.07.2018 passed by the

Division Bench of the Punjab & Haryana High Court is set

aside.

The appointment of the Respondent on regular basis was

invalid since the Respondent did not have the pre-requisite

experience of 3 years’ continuous service prior to 22.01.2001.

The Respondent had sought to secure regularization on the

basis of interpolation in the final list of employees

recommended for regularization. Such an appointment would

be illegal and void ab initio, and cannot be sustained.

The Appellant – Authority rightly terminated the

Respondent vide Order dated 22.05.2003. 17 The Respondent is however entitled to withdraw the

amount of Rs. 25,000/- towards Costs, deposited by the

Appellant – Authority pursuant to the Interim Order dated

22.11.2018 passed by this Court. The Registry is directed to

release the said amount in favour of the Respondent.

Pending applications, if any, are accordingly disposed of.

Ordered accordingly.

.....................................J. (UDAY UMESH LALIT)

.…...............………………J. (INDU MALHOTRA)

New Delhi, April 15, 2019.

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