Nagar Panchayat, Kurwai vs Harshit Eliya And Others

With the consent of contesting parties, the matter is finally heard.

Challenge is to an order dated 07/11/2017 passed in Writ Petition No. 7081/2016, which in turn was directed against the order dated 18/04/2016.

The said order was passed in compliance to direction in Writ Petition No. 232/2016 decided on 13/01/2016; wherein taking into consideration the plight of respondent workman, a daily wager initially engaged in Nagar Panchayat Kurwai, was transferred to newly constituted Nagar Panchayat Shamshabad on the consent of both the councils, but after completion of work at Nagar Panchayat Shamshabad was refused to be taken back by Nagar Panchayat Kurwai and that the workman had put in 11 years of service, the workman was permitted to file representation and direction to Chief Municipal Officer, Nagar Panchayat Kurwai to decide the same.

Chief Municipal Officer, Nagar Panchayat Kurwai, on considering the representation though admitted the fact of consent being given and relieving the workman to join at Nagar Panchayat but declined to owe the same and held that the workman himself had left the job. ("आपको परियोजना अधिकारी विदिशा द्वारा आदेश दिनांक 09.06.2009 को शमशाबाद का आदेश जरूर दिया गया था परंतु उसमें सहमति नगर परिषद कुरवाई की मात्र परियोजना अधिकारी द्वारा लिख देने से मान्य नहीं की जा सकती। आप उक्त आदेश के पालन से स्वयं नौकरी छोड़कर गये थे।").

Learned Single Judge taking into consideration rival contentions set aside the order dated 18/04/2016 and directed for reinstatement of the petitioner as daily wager on the following findings:-

"From perusal of order dated 09-06-2009 passed by the Project Officer, DRDA it is apparent that petitioner was directed to join at newly constituted Nagar Parishad Shamshabad. The order contained specific mention of mutual consent of Chief Municipal Officer Kurwai and Shamshabad. Similarly, the tenor and texture of the order suggested that he had to perform his duty at Nagar Parishad Shamshabad till further orders. Vide order dated 15- 06-2009 issued by the Chief Municipal Officer, Nagar Parishad Kurwai addressed to Chief Municipal Officer, Nagar Parishad Shamshabad District Vidisha, it is reflected that daily wages/ amount would be paid by Nagar Parishad Shamshabad and he was relieved on 15-06-2009. Vide order dated 04-11-2015 (Annexure P/5), it further appears that Nagar Parishad Shamshabad passed the order to revert back the petitioner to Nagar Parishad Kurwai. Although it is settled law that a daily wager cannot be transferred but at the same time, perusal of orders Annexure P/3, P/4 & P/5 reflect that he was not transferred but he was posted with mutual consent of both the Nagar Parishads because of exigency of newly constituted Nagar Parishad Shamshabad. It was logical also that some experienced hands be posted at newly constituted Nagar Parishad Shamshabad to facilitate the work. After six years, when Nagar Parishad Shamshabad returned the services of petitioner to Nagar Parishad Kurwai, then Nagar Parishad Kurwai cannot take the stand which impliedly amounts to removal of petitioner who was working since 2004 as daily wager.

Justification advanced by the respondents whereby they challenged the authority of respondent No.4 to pass such order cannot be accepted at such belated stage. If the order was passed without any authority then respondents No.2&3 could have out rightly rejected the said order and would have disobeyed it but by not doing so they have accepted authority of respondent No.4. Even otherwise respondent No.2&3 nowhere placed any circular/ guidelines or regulation which strips respondent No.4 from his authority to pass such order. The person who has authority to pass any order has authority to rescind the same and once respondents No.2&3 have complied the order of respondent No.4 then at such belated stage question of authority cannot be raised. Action of respondents No.2&3 suggest arbitrariness and colourable exercise of power. Long standing services of petitioner cannot be dispensed with in such a slipshod manner."

It is contended on behalf of the appellant that learned Single Judge grossly erred in presuming the retention of lien of the daily wager after he was relieved from the appellant council. And being the daily wager the service comes to an end when the day is over. Though in principle these submissions sound attractive; however, the relevant facts of the case reveal the unfair labour practice adhered to by the present appellant who knowing well that a daily wager cannot be transferred from one employer to another, yet it accedes to the command of the Project Officer, District Urban Development Agency and relieves the workman for his joining to another Nagar Panchayat, this will be evident from the relieving order which speaks thus:-

"कार्यालय नगर पंचायत क्रमांक/स्थापना/2009/ कुरवाई जिला विदिशा (म.प्र.) कुरवाई, दिनांक

प्रति, मुख्य नगरपालिका अधिकारी,

शमशाबाद जिला विदिशा

विषयः-श्री हर्षित ऐलिया, दै.वे. कर्म. को कार्य संचालन हेतु शमशाबाद नगर पंचायत में अधिकृत करने बावत्। संदर्भः-कार्यालय जिला शहरी विकास अभिकरण विदिशा का आदेश क्रमांक 561 विदिशा दिनांक 09.06.2009 ----

विषयान्तर्गत लेख है कि संदर्भित आदेश अनुसार कार्यालय नगर पंचायत कुरवाई में कार्यरत श्री हर्षित ऐलिया, दै.वे.कर्म. को कार्य संचालन हेतु नवगठित नगर पंचायत शमशाबाद में कार्य संचालन हेतु आपकी सहमति अनुसार आगामी आदेश तक अधिकृत किया गया है। श्री हर्षित ऐलिया को नगर पंचायत कुरवाई द्वारा वर्तमान में 91.20 रूपया प्रतिदिन के मान से अवकाश दिवस काट कर वेतन भुगतान किया जा रहा है, जो आदेश अनुसार अब नगर पंचायत शमशाबाद अपने वित्तीय आधार पर उपस्थिती दिनांक से उन्हें वेतन भुगतान करेगी। श्री हर्षित ऐलिया को नगर पंचायत कुरवाई से आज दिनांक 15.06.2009 को अपरान्ह मुक्त किया जाता है।

मुख्य नगरपालिका अधिकारी

नगर पंचायत कुरवाई, विदिशा

पृ.क्रं./स्थापना/2009/527

प्रतिलिपिः- कुरवाई, दिनांक 15.06.09

परियोजना अधिकारी महोदय, जिला शहरी विकास अभिकरण विदिशा की ओर सादर सूचनार्थ प्रेषित।

2.श्री हर्षित ऐलिया, दै.वे.कर्म. नगर पंचायत कुरवाई की ओर सूचनार्थ एवं पालनार्थ। मुख्य नगरपालिका अधिकारी नगर पंचायत कुरवाई, विदिशा"

That being a model employer, it was incumbent upon the appellant to have protested the transfer. A workman, moreso, a daily wager being always at receiving end could not have protested his relieving. In that event, i.e., when the appellant himself had relieved the workman, incumbent it was upon the appellant to have given him the joining once his job at the new place of posting was over. Instead a new plea was raised that the workman himself had resigned from the job which fact is not substantiated by any cogent material document. Rather such a stand by an officer of the rank of Commissioner is not commensurate to his rank and is deprecated.

In this fact situation, we are of the considered opinion, learned Single Judge is well within its jurisdiction in setting aside the order and directing for reinstatement. As the workman is illegally prevented from joining since 2015, we deem it appropriate to direct the appellant to pay him full wages which he would have earned had he was given the joining after reporting in November, 2015.

The appeal is disposed of in above terms. No costs.