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Judgment
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 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 orders, 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 laborers. 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 the Industrial
Disputes Act and the disengagement of the respondents was deemed as retrenchment without notice and against the mandate of Section 25 of the
aforesaid Act. In this appeal, two pleas have been raised. First, that the writ petitioners (respondents) had filed the writ petition under SRO64 of
1994 for regularization and the relief claimed was that they should be allowed to continue and their services be directed to be regularized.
According to the appellants, it was nobody's case before the learned Single Judge that the respondents claimed to be the workmen 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 laborer.
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 writcourt does not commensurate with the pleadings of the case. He has mainly put 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 of 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 Dispute Act, nor did they seek the relief's under that Act. They have come under
ordinary service Law to be more precise, simply under SRO 64 of 1994 for regularization of their services. It is true that the writcourt on filing of
objections by the appellants came to know that their service 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 other 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 be passed upon a proceeding which, in express terms, it stated to (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 in 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 setaside, but we would like to express few words regarding the arguments of learned counsel for respondents with regard to molding of 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 relief 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 can be moulded but molding of relief does not mean to give a relief on a set of facts or pleadings not at all
mentioned in the petition or put to the respondents to meet the same. In other words molding, of relief should not deny the other side an
opportunity of defending the case on the set of facts of pleadings on the basis of which relief is moulded. Where the claim is put forth before a
court under ordinary service law for regularization and pleadings are mentioned clearly in the petition which commensurate to that claim, but the
court grants relief udders a specific Act, which Act is self contained in having its own procedure to be 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 favor of the respondents.
For these reasons, therefore, the impugned order is setaside. The case is remanded back to the writcourt for rehearing the matter afresh. It will
be open to the respondents to amend their writ petition before the learned writcourt within two week. The writ court is requested to expedite the
disposal of the case. No order as to costs.