Pahup Singh vs State of Raj. and Others

Veerender Singh Siradhana, J.

The petitioner, in the instant writ application, aggrieved of his non-re-employment, has approached this Court praying for the following relief(s):--

"(i) By issuing an appropriate writ, order or direction the order dated 4/5.12.1997 be quashed and set asided and the respondents be directed to take the petitioner back on duty on the same conditions on which other similarly situated persons has been taken on duty in pursuance of the agreement dated 7/10/96 as evident from order dated 26/10/96 on the post of Assistant Project Officer immediately w.e.f. the date similarly situated persons have so been reemployed with all consequential benefits.

(ii) By an appropriate writ order or direction the respondents be directed to pay the due salary to the petitioner from the month of October, 96, the month he was to be given reemployment as per the agreement dated 7/10/96.

(iii) Any other appropriate order writ, order or direction this Hon''ble Court deem think fit and proper may kindly be passed in favour of the petitioners.

(iv) Costs of the writ petition may also be awarded in favour of the petitioners from the respondents."

Briefly, the skeletal material facts essential for appreciation of the controversy raised in the instant writ application needs to be first noticed. The petitioner initially appointed in the year 1976, was accorded promotion on the post of Assistant Project Officer in Rajasthan Cooperative Dairy Federation (RCDF), on 17th January, 1989. On 7th March, 1990, he was transferred to Bharatpur Milk Union from his earlier posting at Ajmer Milk Union, Ajmer. Services of 38 employees, including the petitioner, were terminated vide order dated 19th August, 1996. The termination of the employment aforesaid was also subject matter of SBCWP No. 4327/96, decided on 20th March, 2001; in view of agreement arrived at between the Management of RCDF and the Representatives of Rajasthan Dairy Karamchari Mahasangh, in consultation and with the consent of the Managing Directors of all the Milk Unions under RCDF.

It is pleaded case of the petitioner that according to the ''settlement'' arrived at between the parties, the ''retrenched'' employees of the Bharatpur Milk Union, were to be reemployed in the various Milk Unions, within a period of ten days. The petitioner was not accorded re-employment and therefore, instituted the present writ proceedings.

Learned counsel for the petitioner Mr. Rajendra Soni, reiterating the pleaded facts and grounds of the writ application asserted that the RCDF was obliged to carry out the ''settlement'' arrived at between the parties, in view of guidelines issued vide communication dated 26th October, 1996 (Annex.1).

The petitioner addressed several representations which evoked no response. A notice for demand of justice dated 3rd December, 1997, was also addressed but was not responded. Referring to the terms and conditions of the guidelines, the learned counsel further asserted that the action of the respondents in not according re-employment to the petitioner, is violative of the mandate of Article 14 and 16 of the Constitution of India.

Alleging discrimination, the learned counsel further submits that most of the ''retrenched'' employees of Bharatpur Milk Union, but for the petitioner have been re-employed, as would be reflected from communication dated 4/5 December, 1997 (Annex.6). The "settlement/agreement" arrived at between the parties was binding upon the RCDF and as a consequence thereof, the Managing Directors of various Milk Unions were under an obligation to re-employ the petitioner. Further, the petitioner reported for joining his duties at Jalore-Sirohi Zila Dugdh Utpadak Sahakari Sangh Limited, Raniwara, in compliance of the order dated 3rd November, 1996; but he was not allowed to join.

In response to notice of the writ application, the respondents entered appearance, but have not filed their counter affidavit. None has put in appearance on behalf of RCDF since 2nd September, 2014. Once the respondents were served with the notice of the writ application, it is expected they would be in attendance through authorised representatives and would put forward their defence. Be that as it may, since the pleadings of the writ application have not been denied are to be treated as admitted, in the light of the supporting evidence on record.

I have heard the learned counsel for the petitioner and with his assistance perused the materials available on record.

Indisputably, the services of the petitioner were terminated by the Bharatpur Milk Union following legal procedure and required mandate of law. It is also not in dispute that the petitioner accepted the ''retrenchment compensation'' without any protext and demur. However, the apex body of the cooperative in the State i.e. RCDF, agreed to re-employ, the ''retrenched'' employees of the Bharatpur Milk Union, in other unions, in view of the ''settlement'' that was arrived at, between the parties.

The ''settlement'' arrived at between the parties, has not been placed on record, as is reflected from the contents of Annexure-1. Guidelines were issued by the RCDF, Jaipur, for the purpose of re-employment of the ''retrenched'' employees of the Bharatpur Milk Union.

At this juncture, it would be relevant to consider the text of the guidelines, which reads thus:--

"GUIDELINES FOR RE-EMPLOYMENT OF RETRENCHED EMPLOYEES OF THE BHARATPUR MILK UNION.

In pursuance of the "Settlement" (copy sent earlier) the retrenched employees of the Bharatpur Milk Union (as per the list sent earlier) will report to the Managing Directors of the respective Milk Unions and get the appointment/absorption letters issued.

Appointment letters will be issued by the Managing Directors of the respective Milk Unions specifying the terms and conditions of appointment/absorption as per their bye-laws and approved norms/service conditions. The appointment letter may be issued in duplicate and the concerned person may be advised to sign and return the duplicate copy of the said appointment letter as a token of his acceptance of the terms and conditions mentioned therein. No conditional acceptance of the offer may be agreed to.

The retrenched employees of the Bharatpur Milk Union have been advised to report to the Managing Directors of the respective Milk Unions (as per the list post earlier). The confirmed by the Managing Directors of the respective Milk Unions in the PC meeting held on 07.10.96 at RCDF, Jaipur to accommodate such retrenched employees. In view of the above, wherever position/vacancy is not available in a particular cadre, additional/new posts may be created Competent Authority/Personnel Committee, following the set norms and procedures. Since this might take some time and as we have agreed to employ the retrenched employees of the Bharatpur Milk Union in other Union within a specific time frame as per the "Settlement", the concerned persons may be allowed to join provisionally and his appointment may be regularised later with retrospective effect, after the approval of the Competent Authority/Personnel Committee, as the case may be.

Upon acceptance of the appointment letter, the person shall refund the money received by him as retrenchment compensation and other statutory payments, to the respective Milk Unions. The information regarding who has accepted/not accepted the retrenchment compensation has already been provided to you. The person should be allowed to join only after he has refunded the entire amount. The amount so received by the Union shall be refunded to the Bharatpur Milk Union. The actual amount paid to such employees at compensation is annexed to these guidelines.

The person who refunds the money and joins the respective Union shall be given the benefit of weightage of past service i.e. 9, 18 and 27 years of service for selection grade and other statutory benefits, as usual, as per rules. The details of the employees with regard to their dates of birth, dates of joining the services of RCDF/Bharatpur Unions, dates from which in the present cadre etc., will be sent shortly.

The person who does not refund the amount paid as compensation shall be appointed as a fresher. He should be asked to give in writing that he does not intend to refund the amount so paid to him and therefore, he would be considered as a fresh/new employees of the said Union. For all practical purposes, this will be treated as a fresh/new appointments. His past service and any benefits accrued to him out of that shall not be taken into account under any circumstances.

Their last drawn salary will be protected (in both the cases whether they refund the money or not) while appointing them in the respective Milk Unions.

All those persons so absorbed/appointed shall be treated as junior most in their respective cadres in that Milk Unions. Their seniority will not be protected and no dispute shall be raised by any of them at any point of time in future on this account as agreed upon in the "Settlement".

The dates of commencement of services of the ex-employees of the Bharatpur Union with the respective Unions shall be the dates on which the procedural formalities are completed and on which they report for duty subsequently. The period between the date of retrenchment and date of commencement of reemployment shall be treated as "Special Leave" without pay. The continuity of service shall be admitted only for benefits mentioned at point No. 5 above. For no other personnel action the continuity of services shall be considered.

Leave account, etc., shall commence only from the date of commencement of service in the new Union. No leave or other such benefits accrued during the period of their service with the Bharatpur Union shall be carried over to the new appointment/absorption."

A glance of guidelines would reveal that the ''retrenched'' employees of the Bharatpur Milk Union were advised to report to the Managing Directors of the respective Milk Unions (as per the list that was already furnished to the Managing Directors of Unions). The guidelines further contemplated that in the event of nonavailability of position/vacancy in a particular cadre, additional/new posts may be created as required with the approval of the Competent Authority/Personnel Committee, in accordance with the set norms and procedures. It was further contemplated that since the process may take some time and the ''retrenched'' employees were to be re-employed within a specific time frame as per the "Settlement", it provided for provisional appointment, which may be later on regularized with retrospective effect, after the approval of the Competent Authority/Personnel Committee, as the case make.

In the event of re-employment the retrenched employee was obliged to refund the ''retrenchment compensation'' and other statutory payments. The guidelines further contemplated a condition to the effect that the retrenched person should be allowed to join only after he has refunded the entire amount, which in turn was to be refunded to the Bharatpur Milk Union. The details of the amount paid to the retrenched employees as compensation was also annexed to the guidelines.

According to the condition number 5 of the guidelines, the retrenched employee who refunds the money and joins the respective Union was to be given the benefit of weightage of past service i.e. 9, 18 and 27 years, for the purpose of grant of selection grade. The person, who did not refund the amount of compensation was to be treated as a fresher.

From the guidelines issued by the RCDF, it is also reflected that the persons re-employed were to be treated as junior most in their respective cadres in the concerned Milk Unions and no dispute shall be entertained on the point, which was a condition of the ''Settlement''. The period falling between the date of retrenchment and date of commencement of re-employment was to be treated as "Special Leave", without pay. The continuity of service was to be reckoned only for the purpose of grant of benefits of selection scale.

The guidelines issued and the ''Settlement'', arrived at between the parties, further reflects that the re-employment was subject to the conditions reduced to writing. No material has been placed on record to substantiate the fact that the petitioner ever offered to refund the amount of compensation paid to him as ''retrenchment compensation''. None of the Unions, including Jalore/Sirohi Zila Dugdh Upbhokta Sahakari Sangh Limited, Raniwara, have been impleaded as a party/parties respondent/s to the writ proceedings, who according to the petitioner, did not allow him join in spite of the fact that the petitioner offered himself to join the duty, in compliance of the guidelines issued by the RCDF, Jaipur, in the back drop of the "Settlement", arrived at between the parties.

The entire thrust of the counsel for the petitioner has been on the terms and conditions of the "Settlement", arrived at between the parties, which have not been complied with, depriving the petitioner of his re-employment. On being queried by the Court, as to the right of the retrenched employee for re-employment? The learned counsel heavily relied upon the guidelines (Annex.1). There is no material available on record to draw such an inference. No factual foundation laid to draw an inference that the petitioner offered himself to join as per terms and conditions of the "settlement" and was denied contrary to the terms and conditions stipulated therein. The guidelines specifically contemplated a condition to the effect that the re-employment was to be made subject to availability of vacancy/position and in the event of non-availability of such a position/vacancy, the Managing Directors of the respective Milk Unions were required to allow provisional joining.

Admittedly, no appointment letter was issued in favour of the petitioner, as contemplated under the guidelines. From the guidelines, it is apparent of the face of the record that the appointment letter was to be issued by the Managing Director of the concerned Milk Union specifying the terms and conditions of appointment/absorption as per their bye-laws and approved norms/service conditions. The appointment letter was to be issued in duplicate and the concerned re-employed person was advised to sign and return the duplicate copy of the said appointment letter as a token of his acceptance of the terms and conditions mentioned therein.

Thus, the averments made to the effect that the petitioner was furnished with an appointment order by the RCDF cannot be sustained. No appointment letter is available on record issued by RCDF, Jaipur, in an effort to re-employ the retrenched persons of the Bharatpur Milk Union. However, the re-employment was made subject to availability of posts and the consent of various Unions.

From the materials available on record, it is not reflected that any vacancy/position was available with any of the Unions and the petitioner offered himself for joining. The RCDF, Jaipur, made a sincere effort to accommodate and re-employ the petitioner subject to availability of post and consent of the Union concerned, but on account of non-availability of vacant position and consent of the Union concerned the petitioner could not re-employed.

For the reasons and discussions herein above, the writ petition is devoid of any substance, and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

No costs.