State vs Gh.Rasool Bhat

Kawoosa, J.—This Letters Patent Appeal has been directed against the judgment of learned Single Judge dated 10th July, 1996 passed in

SWP No. 950/95. It has been averred in this LPA that the respondents filed the aforementioned writ petition where in they claimed regularisation

of their service under SRO 64 of 1994 on the basis of having served continuously as daily rated workers for a period of 240 days. It is an

admitted fact that the respondents were engaged as daily rated workers, but without formal appointment order, and after a few months they were

not allowed to continue on the ground that the Executive Engineer, who had asked them to work, had no powers to engage casual labourers as

daily rated workers, However, the writ petition was allowed by the learned Single Judge after receiving objections from the other side. By way of

the impugned judgment, writ was allowed, disengagement of the respondents was quashed and direction was given to the appellants to reengage

them mainly on the ground that the writ petition squarely was covered by Section 25 of Industrial disputes Act and the disengagement of

respondents was deemed or retrenchment against mandate of section 25 F of the aforesaid Act. In this appeal, two pleas have been raised. First,

that the writ petitioners (respondents) has filed the writ petition under SRO 64 of 1994 for regularisation and the relief claimed was that they should

be allowed to continue and their services be directed to be regularised. According to the appellants, it was nobody's case before the learned Single

Judge that the respondents claimed to be the workmen under Industrial Disputes Act and sought relief under that particular Act on the ground that

their retrenchment was effected without notice. Thus, they were disengaged in violation of Section 25 of the aforesaid Act. Secondly, it was

contended that there was no basic appointment. The Executive Engineer had no powers to engage anybody as casual labourer.

Heard learned counsel for parties in detail. Mr. Mujtaba Hussain, learned counsel for the respondents, has submitted detailed arguments. While

admitting the ground realities that the relief given by the writ court does not commensurate with the pleadings of the case he has mainly but his

thrust on the point that the writ court, while exercising its powers under Article 226 of the Constitution of India, can mould the relief. It is a fact that

the respondents did not claim that they were employees of a Corporation or that they were workmen within the meaning of relevant provisions of

the Industrial Disputes Act. They have not pleaded that they were retrenched or that their disengagement amounted to retrenchment. In short, they

did not claim to be governed by the provisions of Industrial Disputes Act, nor did they seek the reliefs under that Act. They have come under

ordinary service law, to be more precise, simply under SRO, 64 of 1994 for regularisation of their services. It is true that the writ court on filing of

objections by the appellants came to know that their services had been disengaged only after a few months and the learned Single Judge granted

the relief to the respondents under Industrial Disputes Act on the ground that the case of the respondents had not been dealt with by the appellants

under Section 25(F) of the aforesaid Act.

We have given our thoughtful consideration to the arguments advanced before us. We feel two difficulties in dealing with this appeal. While

perusing the record, it was found by us that the writ petition was allowed without formally admitting it to hearing. There is no dispute about it. Our

view is that without formally admitting the writ petition to hearing, the relief given in the petition is hardly enforceable in law. It is true that a writ

petition can be disposed of at the initial stage, but the point involved is whether it can be disposed of without formally admitting it to hearing. We

have come across a case of similar nature entitled ""Union of India and others Vs. Daya Ram"" decided by the Apex Court (Civil Appeal No. 7409

of 96). it has been held in the aforesaid judgment that:

Without admitting the petition to hearing, it is difficult to see how enforceable orders directing the respondent to a writ petition to do a certain

things can he passed upon a proceeding which, in express terms, is stated to have been not admitted."" (See SLJ 1997 page 155).

The Apex Court on this very point set aside the order, though it was passed with consent of the parties. The same principle applies to the present

case also. Without admitting the writ petition to hearing, the inference is that, the petition is not on the file of the High Court. So there is difficulty is

enforcing the orders passed in a petition which is not admitted to hearing. Though on this score only the judgment impugned is liable to be set

aside, but we would like to express few words regarding the arguments of learned counsel for respondents with regard to moulding to the relief.

Learned counsel for the respondents defended the impugned judgment on the ground that the writ court is within its bounds to mould the relief

even if it is not pleaded in the writ petition. We have already mentioned that the reliefs which was given to the respondents under Industrial

Disputes Act was never pleaded in the petition, nor claimed. Writ petition filed is on a quite different footing and the relief given is under Industrial

Disputes Act. We do not deny that the relief does not mean to give a relief on a set of facts or pleadings not at all mentioned in petition or put to

the respondents to meet the same. In other words, moulding of relief should not deny the other side an opportunity of defending the case on the set

of facts or pleadings on the hasis of which relief is moulded. Where the claim is put forth hefore a court under ordinary service law for

regularisation and pleadings are mentioned clearly in the petition which commensurate to that claim, but the court grants relief under a specific Act,

which Act is self contained is having its own procedure to he employed in claiming or granting the relief and the forum is also given under that Act,

in such eventuality it is difficult to accept that the relief can be moulded when nothing has been pleaded in the petition to get the relief under that

Specific Act. In such circumstances we think that without giving opportunity to the other side to meet the facts on which relief is granted will not be

in accordance with law. In the present case, the facts, pleadings and the relief claimed were entirely different from the one on which the relief has

been granted. The learned Single Judge, therefore, seems to have fallen into an error in granting the relief in favour of the respondents.

For these reasons, therefore, the impugned order is set aside. The case is remanded back to the writ court for rehearing the matter afresh. It will

be open to the respondents to amend their writ petition, if they so choose, to enable the appellants to meet their case. Registrar Judicial is directed

to list the writ petition before the learned writ court within two weeks. The writ court is requested to expedite the disposal of the case.

No order as to costs.