# Smt. Veena Agarwal v. M/s Unjha

- **Citation:** (2009) 1 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-04
- **Case number:** Special Appeal No. 308 of 2008
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-veena-agarwal-v-m-s-unjha-41315
- **Pages:** 6

## Headnote

Constitution of India-Art. 226-Recall of
regularization
orderpetitioner/respondents
working
as
casual
labour
on
class
4th
postcorporation framed scheme to convert
those casual labours as full time workerthereafter
under
the
said
scheme
regularized service book prepared given
all
benefits
available
to
regular
employees-after
4
years
revocation
consequent
to
regularization-orderreverting as casual labour and recovery
of
excess
payment
consequent
to
regularisation in the garb of Uma Devi
Case-held-neither in Uma Devi nor in
subsequent decisions-authorities have
been
empowered
to
revoke
the
regularization order in utter violation of
principle
of
natural
justice-nor
the
workers found guilty if concealment of
material facts or playing fraud in getting
regularization-held-rightly quashed by
learned
Single
Judge-concerned
authority to take decision as fresh after
giving
full
opportunity
to
those
petitioner-fill final decision status quo
shall be maintained.

Held: Para 10

Be that as it may, so far as these appeals
are concerned we are prima facie of the
view
that
the
petitioners
were
regularised by the competent authority
giving
the
benefit
of
scheme
of
regularisation
which
was
neither
challenged in any Court of Law nor was
struck down. So long as the scheme is
continuing and its benefit has been
extended
to
similarly
placed
other
employees by issuing formal orders of
regularisation on or before 10.04.2006,
we do not find any reason as to why
mere delay in issuing the formal orders
of regularisation to the petitioners would
deprive the same benefit to them who
are also covered by the said scheme
which has been formulated by the
appellants themselves and has not been
discontinued. Moreover, once the benefit
of regularisation has been conferred
upon a person, before its revocation it is
incumbent upon the employer to afford
adequate opportunity of defence. The
alleged show cause notice issued by the
appellants in the case in hand only
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
shows that since the Apex Court's
decision in Uma Devi (supra) has been
delivered
on
10.04.2006
and
the
regularisation
order
were
issued
thereafter hence the appellants decided
to revoke the same and it did not give
such facts as has been argued before the
Court that the regularisation has been
obtained by the petitioner on accounts of
fraud or misrepresentation etc. and they
are not covered by the scheme.
Case law discussed:
2006(4) SCC 1, 2007(1) SCC 373, JT 2007(12)
SC 179, JT 2008(11) SC 467, AIR 1994 SC
2480

## Text

1 All] The C.M.D. and others V. Masan Ali and others
49
counsel without terminating the authority
of the earlier counsel and the name of any
of them is duly printed and no one attends
the Court, it is obligatory for the party to
give sufficient explanation for the absence
of the both. The non printing of the name
of the subsequent counsel itself would not
be a sufficient ground to recall the
judgment and order passed on merits.

7. A similar view has also been
expressed by another Division Bench of
this Court recently in 2007 (3) ALJ 116
Smt. Veena Agarwal Vs. M/s Unjha
Ayurvedic Pharmacy & others.

8. Therefore, I am of the view that
non printing of the name of the
subsequent counsel is not a valid ground
for recall of the order.

9. Application rejected.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 308 of 2008

The Chief Managing Director (C.M.D.)
and others

...Appellants
Versus
Masan Ali and others
 ...Respondents

Counsel for the Appellants:
Sri Subodh Kumar

Counsel for the Respondents:
Sri Manoj Pathak

Constitution of India-Art. 226-Recall of
regularization
orderpetitioner/respondents
working
as
casual
labour
on
class
4th
postcorporation framed scheme to convert
those casual labours as full time workerthereafter
under
the
said
scheme
regularized service book prepared given
all
benefits
available
to
regular
employees-after
4
years
revocation
consequent
to
regularization-orderreverting as casual labour and recovery
of
excess
payment
consequent
to
regularisation in the garb of Uma Devi
Case-held-neither in Uma Devi nor in
subsequent decisions-authorities have
been
empowered
to
revoke
the
regularization order in utter violation of
principle
of
natural
justice-nor
the
workers found guilty if concealment of
material facts or playing fraud in getting
regularization-held-rightly quashed by
learned
Single
Judge-concerned
authority to take decision as fresh after
giving
full
opportunity
to
those
petitioner-fill final decision status quo
shall be maintained.

Held: Para 10

Be that as it may, so far as these appeals
are concerned we are prima facie of the
view
that
the
petitioners
were
regularised by the competent authority
giving
the
benefit
of
scheme
of
regularisation
which
was
neither
challenged in any Court of Law nor was
struck down. So long as the scheme is
continuing and its benefit has been
extended
to
similarly
placed
other
employees by issuing formal orders of
regularisation on or before 10.04.2006,
we do not find any reason as to why
mere delay in issuing the formal orders
of regularisation to the petitioners would
deprive the same benefit to them who
are also covered by the said scheme
which has been formulated by the
appellants themselves and has not been
discontinued. Moreover, once the benefit
of regularisation has been conferred
upon a person, before its revocation it is
incumbent upon the employer to afford
adequate opportunity of defence. The
alleged show cause notice issued by the
appellants in the case in hand only
50 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
shows that since the Apex Court's
decision in Uma Devi (supra) has been
delivered
on
10.04.2006
and
the
regularisation
order
were
issued
thereafter hence the appellants decided
to revoke the same and it did not give
such facts as has been argued before the
Court that the regularisation has been
obtained by the petitioner on accounts of
fraud or misrepresentation etc. and they
are not covered by the scheme.
Case law discussed:
2006(4) SCC 1, 2007(1) SCC 373, JT 2007(12)
SC 179, JT 2008(11) SC 467, AIR 1994 SC
2480

(Delivered by Hon'ble S. Rafat Alam, J.)

1. All these three intra-Court appeals
arise out of a common judgement dated
16.11.2007 of Hon'ble Single Judge
allowing the writ petitions of petitionerrespondents (hereinafter referred to as the
"petitioners')
quashing
the
orders
impugned in the writ petition whereby the
respondent-appellants
(hereinafter
referred to as the "appellants") have
cancelled the orders of regularisation of
petitioners and reverted them to their
original
position
of
full
time
sweeper/casual labour and also directing
for recovery of the amount paid in excess
to the petitioners.

2. The appellants it appears
formulated a scheme for conversion of
part time casual labours into full time
casual labours w.e.f. 25.08.2000 and
thereafter on 23.01.2006 took a further
decision that all those part time casual
labours who have been converted into a
full time casual labours be considered for
regularisation against group 'D' vacancies.
Appropriate direction in this regard was
issued by General Manager, East Circle,
Bharat Sanchar Nigam Limited, Lucknow
(hereinafter referred to as the "General
Manager,
BSNL")
on
23.01.2006
appending a list of such labours who it
sanctioned for regularisation in group 'D'
cadre. The aforesaid list included all the
petitioners. The General Manager, BSNL
thereafter issued orders of regularisation
on 20/31.07.2006 and corresponding
order for pay fixation was issued on
03.08.2006. Service books of petitioners
were prepared and pay slips were also
issued. On 02.01.2007 the impugned
order was issued reverting the petitioners
to their original position as casual labours
w.e.f. December, 2006 and orders were
issued for payment of wages on daily
wage basis. Another order was issued on
15.01.2007 directing the Accounts Officer
concerned that the amount already paid to
the petitioners, over and above the wages
found payable on daily wage basis, be
recovered from them. It is these two
orders which were challenged in the writ
petitions by the petitioners on the ground
that having regularised they could not
have been reverted to their original
position as casual labour and secondly
that the impugned orders have been issued
in utter violation of principle of natural
justice.

3. The case of the appellants before
the Hon'ble Single Judge was that, besides
other, the petitioners could not have been
regularised in view of the Constitution
Bench judgement in Secretary, State of
Karnataka Vs. Uma Devi 2006(4) SCC
1 decided on 10.04.2006 since in the case
in hand the order of regularisation was
issued after the aforesaid judgment and it
is for this reason that the respondents
passed the impugned orders reverting the
petitioners to their original position as
casual labour. The appellants in their
counter affidavit pleaded that before
passing the impugned orders, show cause
1 All] The C.M.D. and others V. Masan Ali and others
51
notice was issued by the Assistant
General Manager on 28.10.2006 stating
that in view of the Apex Court's decision
the orders of regularisation deserved to be
cancelled and the petitioners shall be paid
salary as per the old system and thereafter
only the order dated 31.07.2006 of
cancellation of regularisation was passed.
In the supplementary counter affidavit it
was also pointed out that after the
decision of Apex Court in Uma Devi
(supra), a circular letter was issued by the
Assistant Director General (Personal-IV),
Bharat Sanchar Nigam Limited, New
Delhi on 17.05.2006 stating that the Apex
Court has held that any appointment made
bypassing the scheme envisaged in the
Constitution for public employment is
illegal and the judgment of Apex Court be
brought to the notice of all concerned. It
is said that thereafter it was not within the
authority of subordinate officials to issue
any regularisation order to the petitioners.
Since the aforesaid circular order came to
the notice of the authorities subsequently,
the regularisation orders were recalled. By
another supplementary counter affidavit it
was said that the petitioners were never
engaged by advertisement of vacancies,
inviting
applications,
undergoing
selection procedure etc. and, therefore,
their engagement being illegal they could
not have been regularised in view of the
Constitution Bench decision in Uma Devi
(supra)
followed
in
Municipal
Corporation of Jabalpur Vs. Om
Prakash Dudey, 2007(1) SCC 373.

4. The Hon'ble Single Judge has
held, taking recourse to another decision
of the Apex Court in U.P. State
Electricity Board Vs. Pooran Chandra
Pandey and others, JT 2007(12) SC 179
that the judgment of Apex Court in Uma
Devi
(supra)
would
not
apply
mechanically without looking to the facts
of the particular case and thereafter has
examined the facts of these cases in
particular, and held, that there was an
agreement between the parties that casual
labours working on part time basis would
be made full time casual labours and
thereafter would be absorbed as a one
time scheme and the said agreement was
binding between the parties. His Lordship
has also held that mere lack of requisition
sent to the employment exchange under
the Employment Exchange (Compulsory
Notification of Vacancies) Act, 1959
would
not
vitiate
the
exercise
of
regularisation and hence they could not
have
been
denied
the
benefit
of
regularisation only on the ground of the
decision of the Apex Court Uma Devi's
case and that too without any opportunity
or show cause notice.

5. Learned counsel for the appellants
vehemently contended before this Court
that the Hon'ble Single Judge has failed to
consider that the alleged regularisation of
petitioners was the result of fraud or
misrepresentation on their part inasmuch
as there are certain persons who is said to
have been engaged as part time casual
labours at the age of 7 or 8 years when
they were minor and without looking to
these facts, in a collusive manner, the
field authorities appears to have issued
regularisation orders of the petitioners
and,
therefore,
they
were
rightly
deregularised
and
the
orders
for
realization of excess amount paid under
the regularisation orders were issued. He
drew our attention to the supplementary
counter affidavit, para 4 and 5 thereof,
showing that Smt. Asha Devi has shown
date of engagement as 10.02.1985 and her
date of birth is 05.04.1977 which means
that as per her own claim she was
52 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
engaged as casual part time labour when
she was below 8 years of age. He,
therefore, submitted that in case of fraud
or misrepresentation it was always open
to the employer to recall its order and the
Hon'ble Single Judge has erred in law in
observing that the case of fraud or
misrepresentation has not been pleaded by
the appellants. He contended that the
words "fraud or misrepresentation" in so
many words though have not been
mentioned in the pleading but the
aforesaid facts were placed on record to
show the ex facie fraudulent activities in
the regularisation of petitioners and,
therefore, the regularisation orders have
been recalled rightly.

6. Sri R.C. Pathak, learned counsel
for the petitioners, however, disputing the
aforesaid facts contended that at no point
of
time
the
case
of
fraud
or
misrepresentation was ever pleaded or
argued by the appellants and, therefore
here is not a case which warrants
interference in the appeal particularly
when the orders of regularisation in
favour of petitioners have been cancelled
without affording any opportunity to
petitioners by mechanical application of
the Apex Court decision in Uma Devi
(supra) though the said decision in the
facts and circumstances of the case have
no application.

7. Having considered the submission
and going through the record we find that
the appellants have not disputed this fact
that as a one time measure, relaxing all
other conditions of recruitment etc., they
formulated a policy of regularisation of
such part time casual labours who were
working since long before the creation of
Bharat Sanchar Nigam Limited by firstly
converting part time casual labour in full
time
casual
labour
and
thereby
regularizing them in group 'D' service.
The said scheme was not revoked or
rescinded by the respondents. It is not
their case that the benefit of the said
scheme has not been accorded/extended
to other similarly placed employees. The
only reason for not extending the benefit
of the said scheme to the petitioners is
that by the time actual order of
regularisation could be issued/or was
issued in favour of the petitioners the
Apex Court decision in Uma Devi
(supra) had come which provided that the
engagement/ appointment made contrary
to the rules cannot be regularised. The law
laid down by the Apex Court in Uma
Devi (supra) is the law of land and it has
to be observed and complied with by all
the authorities. We have no manner of
doubt in this proposition. However, the
Apex Court in Uma Devi (supra) has
neither set aside the existing scheme or
provision in a department which provide
for benefit of regularisation to its
employees and it has also not touched
upon the orders of regularisation already
issued in various cases according to the
existing scheme or the statutory provision
as the case may be.

8. In the case of petitioners the
decision to convert part time casual
labours into full time casual labours was
taken in 2002 and for regularisation
thereof in January, 2006. If the appellants
took some more time or delayed the
matter for issuance of actual order of
regularisation, the petitioners for the same
could not have been blamed. Moreover,
the Chief General Manager, BSNL,
Lucknow issued order on 23.01.2006
itself
according
its
approval
for
regularisation of the petitioners and while
conveying its sanction, it only directed the
1 All] The C.M.D. and others V. Masan Ali and others
53
concerned authority to verify that the
persons sought to be regularised were
working on the date of regularisation and
fulfill all other conditions requisite for the
same as provided in the scheme of
regularisation and that they shall be
regularised against the post created in
group 'D' and not against new posts to be
sanctioned for this purpose only. That
being so, the mere incident of issuance of
formal regularisation orders after the
decision of Apex Court in Uma Devi
(supra) cannot vitiate the otherwise valid
regularisation of the petitioners inasmuch
as the fate of petitioners in respect to
regularisation cannot depend upon the
exigency or incident of mere issuance of
formal orders of regularisation by the
concerned authority though all other
formalities were completed much earlier
in point of time. Neither that is the intent
of law laid down by the Apex Court in
Uma Devi (supra) nor it has said so.
Despite of our repeated query from the
learned counsel for the appellants he
could not show anything contained in
Uma Devi (supra) which empower an
employer
to
recall
an
order
of
regularisation either already issued or if
the other procedure was completed but
formal order was issued thereafter in
accordance with the existing scheme or
rules for regularisation. Even in the
subsequent decisions the Apex Court has
nowhere says that where a person is
covered by a regularisation scheme
formulated by the employer, in the
absence of such scheme being challenged
in a Court of Law and declared illegal, the
benefit of such scheme cannot be
extended to such employees.

9. It is no doubt also true that so far
as the decision of Apex Court in Pooran
Chandra Pandey (supra) is concerned it
would be useful to refer a three Judge
judgment of Apex Court in Official
Liquidator Vs. Dayanand and others,
JT 2008(11) SC 467. The Apex Court
held that some part of the judgment in
Pooran Chandra Pandey (supra) in so
far as it has commented and made
observations in respect to Uma Devi
(supra) would neither be treated as
binding by the High Courts, Tribunals and
other judicial forums nor they should be
relied upon or made basis for bypassing
the
principle
laid
down
by
the
Constitution Bench. However, this would
not turn the table otherwise since the
present cases can be decided even
otherwise.

10. Be that as it may, so far as these
appeals are concerned we are prima facie
of the view that the petitioners were
regularised by the competent authority
giving
the
benefit
of
scheme
of
regularisation
which
was
neither
challenged in any Court of Law nor was
struck down. So long as the scheme is
continuing and its benefit has been
extended
to
similarly
placed
other
employees by issuing formal orders of
regularisation on or before 10.04.2006,
we do not find any reason as to why mere
delay in issuing the formal orders of
regularisation to the petitioners would
deprive the same benefit to them who are
also covered by the said scheme which
has been formulated by the appellants
themselves and has not been discontinued.
Moreover,
once
the
benefit
of
regularisation has been conferred upon a
person, before its revocation it is
incumbent upon the employer to afford
adequate opportunity of defence. The
alleged show cause notice issued by the
appellants in the case in hand only shows
that since the Apex Court's decision in
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Uma Devi (supra) has been delivered on
10.04.2006 and the regularisation order
were
issued
thereafter
hence
the
appellants decided to revoke the same and
it did not give such facts as has been
argued
before
the
Court
that
the
regularisation has been obtained by the
petitioner on accounts of fraud or
misrepresentation etc. and they are not
covered by the scheme.

11. Further, before directing for
recovery of the amount already paid,
again
it
was
incumbent
upon
the
appellants to afford opportunity to the
petitioners. The alleged show cause notice
filed as Annexure-1 to the counter
affidavit nowhere says that such fact was
mentioned and the petitioners were
directed to show cause against any
proposed recovery. In Bhagwan Shukla
v. Union of India, AIR 1994 SC 2480
the Apex Court clearly held that such
orders could not have been passed without
affording opportunity of show cause to
the concerned employee.

12. In the circumstances while
confirming the judgment of Hon'ble
Single Judge to the extent it has set aside
the orders impugned in the writ petitions
we
make
it
clear
that
the
other
observations of Hon'ble Single Judge may
not come in the way of the appellants for
passing fresh orders in respect of the
petitioners in accordance with law which
they may pass after issuing an appropriate
show cause notice to the petitioners
henceforth giving them opportunity to
submit their reply effectively. This
exercise shall be completed by the
appellants within three months from
today.

13. We are informed that during the
pendency of this appeal the petitioners
were working and discharging their duties
with the appellants which fact has not
been disputed by learned counsel for the
appellants. That being so, till fresh orders,
as directed above, are passed by the
appellants status quo in respect to the
continuance of petitioners in service,
status and salary shall be maintained.

14.

With
the
aforesaid
directions/observations and modifications,
all the appeals are disposed of. There shall
be no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1670 of 2008

Ram Chandra Dixit

...Appellant
Versus
Union of India

 ...Respondent

Counsel for the Appellant:
Sri Bhoopendra Nath Singh

Counsel for the Respondent:
Addl. Solicitor General of India

Industrial Dispute Act, 1947-Section 10Oral
termination-after
13
yearsworkman
approached
before
central
Government to refer the dispute-refusal
by Govt. on ground of inordinate delayheld-proper-case law Ajab Singh relied
by the workman-held-no application.

Held: Para 6

In the facts of the present case, the
Central Government for the reasons