Monday, 21 September 2015

SC: THE RESPONDENTS CANNOT TAKE THE BENEFIT OF THE DELAY CAUSED BY THEM. (ABSORPTION OF RETRENCHED EMPLOYEES)

In a landmark judgement of the Supreme Court of India dated September 09, 2015 in Civil Appeal no. 9165-72/09, held that the respondents cannot take the benefit of the delay caused by them. Thereby it approved single bench decision of the High Court and reversed Division Bench order.

The admitted facts of the case was that in the State of U.P. a set of rules were existed namely, the Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991. After the Corporation was wound up, the employees of the U.P. State Cement Corporation Limited Corporation, filed Writ Petition seeking absorption under the aforesaid Rules.

The Single Judge hearing the writ petition referred to Rule 3(i) of the Rules that deals with the rights of the retrenched employees. He referred to the dictionary clause engrafted in Rule 2(c), which reads as follows: “2(c) Retrenched employees means a person who was appointed on the post under the Govt. or a public corporation on or before Oct., 1, 1986 in accordance with the procedure laid down for recruitment to the post and was continuously working in any post under the Government or such Corporation up to the date of his retrenchment. Due to reduction in, or winding up of, any establishment of the Government or the Corporation, as the case may be and in respect of whom a certificate of being a retrenched employee has been issued by this appointing authority.”
After reproducing the said provision, the High Court referred to the order passed in Civil Miscellaneous Writ Petition No.17195 of 1998, and reproduced the relevant paragraphs from the decision rendered therein and, thereafter, took note of the fact that the said order had been affirmed in Special Appeal No.540 of 1999, and further stood confirmed by the SC, for the appeal preferred before the Supreme Court did not meet with success. The learned Single Judge also referred to the order passed in Civil Miscellaneous Writ Petition No. 38534 of 2001 on 20th September, 2003, wherein a direction was issued to the respondent No.2 to take appropriate decision. After the said direction was issued, the Principal Secretary (Personnel), Government of U.P., rejected the claims of the petitioners therein on the foundation that the Personnel Department did not have the authority to declare the employees as retrenched employees and to take a decision for their absorption. The learned Single Judge dealt with various contentions raised by the learned counsel for the parties and also cogitated upon the U.P. Absorption of Retrenched Employees of the State Government/Public Sector Corporation in Government Service (Recession) Rules, 2003 and, eventually held that the Absorption Rules, 1991 were rescinded on 8th April, 2003 and much prior to that the employees had represented and the respondents were required to consider their rights for absorption within two months and regard being had to the rule position, it could safely be held that the rights of the employees had crystallized much before the Rules were rescinded. After so holding, the learned Single Judge proceeded to state, “The respondents cannot take the benefit of the delay caused by them in considering petitioners application. The two months period granted by this Court on 20.09.2002 expired on 20.11.2002. The delay made by the Secretary (Karmik) Anubhag-2, Government of U.P. in deciding the matter, cannot be a ground to refuse the due consideration, required to be made by this Court before the rescission of the Rules. The Rescission of Rules will, therefore, not come in the way of petitioners in claiming the absorption. The writ petition, as such, allowed. The impugned order dated 30.04.2003 passed by the Special Secretary (Karmik) Anubhag-3, Govt. of U.P., Lucknow (Annexure-10 to the writ petition) is quashed. The respondents are directed to absorb the petitioners in any vacancy on Group-C post outside the purview of Public Service Commission within a period of two months from the date of production of a certified copy of this order.”

The aforesaid order was assailed before a Special Bench in Special Appeal No.618 of 2004 and the Division Bench of the High Court reversed the Single Bench decision.

However, the Supreme Court disapproved the Division Bench decision and upheld the decision of Single Bench with the following words indicating what is happening in the Courts in India: “In the obtaining factual matrix, we are disposed to think that it was absolutely inappropriate on the part of the High Court to go in search of ratio of the judgment rendered by the Single Judge on the earlier occasion, when the controversy had really been put to rest by this court. The Division Bench, we are disposed to think, should not have entered the arena which was absolutely unwarranted. The decision rendered by this Court inter se parties was required to be followed in the same fact situation. When the factual matrix was absolutely luminescent and did not require any kind of surgical dissection, there was no necessity to take a different view. Needless to say, this kind of situation procrastinate the litigations and the litigants,… is extremely expensive and time consuming.”

In this regard, SC had quoted from an earlier decision, “One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-Judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority.”

Finally, it was held that in view of the aforesaid analysis, they could not find any reason why the appellants therein should not reap the benefits of absorption and, accordingly, it was directed that they should be absorbed by the State Government as per their seniority and be given the benefit of increments, within eight weeks. SC also ordered that they would be entitled to their seniority as per the prevalent rules. If anyone hds been retired from service, he should also get the retirement benefits inclusive of pension.

[Reference: SC., CIVIL APPEAL NOS.9165-9172 OF 2009 Sunil Kumar Verma and Others Appellant(s) V/s State of U.P. and Others Respondent(s)]

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