IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5049 of 2007 1. THE STATE OF BIHAR THROUGH THE COLLECTOR CUM-DISTRICT MAGISTRATE, SAHARSA, NAMELY NIRANJAN KUMAR CHOUDHARY, SONOF SRI MANOJ MOHAN CHOUDHARY, RESIDENT OF 293, RAM NAGRI, ASHIYANA NAGAR, P.S. SHASTRINAGAR, PATNA 2. EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, SAHARSA, NAMELY NANDJEE RAM SON OF LATE GHURA RAM RESIDENT OF VILLAGE BAHUARA, P.S. JAGDISHPUR, DISTRICT BHOJPUR. …………PETITIONERS Versus 1. DEO NARAYAN YADAV SONOF LATE SUMRIT YADAV, RESIDENT OF VILLAGE SAHASRAM, P.O. GOLMA, P.S. SOUR BAXAR, DISTRICT SAHARSA 2. SRI SACHHIDANAND YADAV, ASSISTANT GOVERNMENT, PLEADER, SAHARSA. ----------- 9 29-3-2010 The State of Bihar has filed the instant writ petition against award passed by Lok Adalat, Saharsa on 9.5.2006 on the basis of settlement deed dated 25.4.2006, filed in T.S. No.104 of 2000, allowing the claim of respondent no.1. 2. The petitioner states that respondent no.1 Deo Narayan Yadav was appointed as Work Sarkar on adhoc basis for four months by Superintending Engineer, PHED Circle, Saharsa vide office order no.17, dated 21.3.1988 without any advertisement or sanctioned post. Respondent no.1 joined on 20.3.1988. Pursuant to the government decision fixing 1.1.1988, as cut off date for regularization, the service of respondent no.1 along with other adhoc employees appointed after 1.1.1988 were terminated. Accordingly, the service of respondent no.1 was terminated vide order no.1535 dated 3.8.1988, as he was engaged/appointed after 1.1.1988. Again by letter no.228 dated 12.10.1988 issued by the Chief Engineer (Design), PHED, Bihar, Patna, respondent no.1 was appointed, to be terminated again in 2 compliance of the department‟s letter no.154 dated 4.4.1989. However, the respondent no.1 was again appointed as Work Sarkar by the Executive Engineer, PHED, Saharsa in light of the department letter no.220 dated 9.2.1990. 3. At this stage, the petitioner filed C.W.J.C.No.5038 of 1991 for regularization of his service which was disposed of on 28.7.1992. This court noticing that there is nothing like appointment in case of daily wagers, but only an engagement, and as such the same would not confer any legal right. However, this court observed that if there is any vacant post, then that must be filled up by regular appointment. This court also observed that at the aforesaid stage, the case of the petitioner along with all eligible candidates will be considered in accordance with law. 4. In the meanwhile, the Joint Secretary, PHED, asked for a list of persons appointed on Class III and Class IV posts after the cut off date of 1.1.1988. In response thereof the Superintending Engineer, PHED Circle, Saharsa submitted a list of 63 persons including respondent no.1. After due enquiry and show cause, again the services of all 63 persons including respondent no.1 were terminated under order dated 13.2.1992. Against the order of termination, about 24 aggrieved employees out of 63 persons filed C.W.J.C.No.121 of 1992. This writ petition too was dismissed by order dated 13.4.1992. The aggrieved persons filed S.L.P.No.8259 of 1992 before the Hon‟ble Supreme Court. The appeal was admitted and the order of this Hon‟ble Court was stayed. A copy of order dated 13.4.1992 of Apex 3 Court is at Annexure-1. 5. All the employees including respondent no.1 were allowed to join by order dated 24.4.1993 and 7.12.1993 of the government, even though they were not the petitioners before the Apex Court. Finally, the Apex Court by its order dated 14.1.1997 dismissed the appeal. As the case of similarly placed employees were dismissed by the Hon‟ble Apex Court against the order of retrenchment, the services of respondent no.1 and others were terminated vide order no.5 dated 17.3.1998 issued by the Superintending Engineer, PHED, contained in Annexure-3. 6. The respondent no.1 then filed a Suit No.104 of 2000 praying inter alia to set aside the order of termination dated 17.3.1998. Respondent no.1 prayed before the Sub-Judge to transfer the suit before the Lok Adalat which was objected by the learned A.G.P. The aforesaid fact is also evident in the order dated 20.8.2000 of the trial court. The case was subsequently transferred to the Lok Adalat. Respondent no.1 in the meantime filed C.W.J.C.No.9848 of 2003 which was considered along with C.W.J.C. 9839 of 2003 (Parijad Bhattacharya Vs State of Bihar). This court directed the Chief Secretary, Bihar to look into the grievance of the petitioner. The case of respondent no.1 was considered by the department and found that his alleged service itself was illegal. 7. On 25.4.2006 a settlement agreement (compromise) was filed in T.S.No.104/2000 and the matter was placed before Lok Adalat. The Lok Adalat by Award dated 9.5.2006 ordered that compromise 4 petition dated 25.4.2006 filed on behalf of the plaintiff and A.G.P. will form part of the award. Respondent no.1 filed execution case in the court of Sub-Judge III, Saharsa vide Execution Case No.1 of 2006 for execution of the award. 8. Counsel for the State submits that by Award dated 9.5.2006 the service of respondent no.1 has been regularized w.e.f. 21.3.1998. Further more, the back salary along with medical reimbursement of the plaintiff and treatment of his wife was to be paid within one month of the decree or award, otherwise respondents in T.S. would pay interest @ 18% per annum. As per Award, Rs.2 lacs was to be reimbursed to the plaintiff for his treatment, apart from Rs.10,000/- as cost, and Rs.3 lacs as compensation. 9. They state and submit that the settlement deed did not have due authorization of the government and as such the same was incompetent and fit to be set aside. Further more, no suit could be maintainable against order of retrenchment, when appeal against similar order of retrenchment has failed in the Hon‟ble Apex Court. The Division Bench of this Court vide order dated 28.7.1992 had also refused to regularize the service of respondent no.1. 10. Counsel for respondent no.1 states that the settlement deed filed by the A.G.P. had full authorization of the District Collector. In the beginning when the Government Advocate was not ready to file the settlement deed, he was even show caused by the District Magistrate. The Executive Engineer and Superintending Engineer, PHED Circle, Saharsa also recommended settlement in the case. 5 Further more, respondent no.1 did not move the Hon‟ble Apex Court against the common order of retrenchment dated 17.3.1998, contained in Annexure-3, and as such the principle of estoppel or resjudicata will not apply in his case. He submits that on 1.1.1998 during the tenure of his service, the respondent no.1 sustained injuries on account of which portion of fingers of his hand and limbs of legs were amputated. It is not in dispute that the aforesaid mishap took place in course of performance of duties. He further submits that the Executive Engineer vide his letter dated 26.6.2002 recommended settlement of the case by Lok Adalat. The proposal was fully approved by the Collector, Saharsa. The respondents next contended that a Division Bench of this court in case of Koshi Project Worker‟s Association & anr Vs State of Bihar, reported in 2007(1) PLJR 358 held that an employee working in the work charge establishment for a period of more than one year is deemed to be a member of permanent establishment of State Government in view of notification dated 26.4.1950. Learned counsel also raised preliminary point of maintainability of this very writ application against award passed by the Lok Adalat. In support of his contention, he placed reliance on judgment of learned two Judge Bench of Apex Court in the case of P.T. Thomas Vs Thomas Job, reported in 2005(4) P.L.J.R. 47(SC). 11. As the issue of maintainability of the writ petition has been raised, this court proposes to decide this issue first. Respondent no.1 submits that the Apex Court in the case of P.T.Thomas Vs Thomas Job (supra) has held that the Award of Lok Adalat being akin to a 6 decree passed by Civil Court and having the same binding and conclusive effect, cannot be challenged by any regular remedies available under law including Article 226 of the Constitution, specially on the ground raised in writ petition. It would be relevant to quote paragraph19 of the aforesaid judgment which runs as under: “19. The High Court of Andhra Pradesh held that, in Board of Truestees of the Port of Visakhapatnam vs Presiding Officer, Permanent, Lok Adalat-cum-Secretary, District Legal Services Authority, Visakhapatnam and Another, reported in 2000(5) ALT 577, “The award is enforceable as a decree and it is final. In all fours, the endeavour is only to see that the disputes are narrowed down and make the final settlement so that the parties are not again driven to further litigation to any dispute. Though the award of a Lok Adalat is not a result of a contest on merits just as a regular suit by a Court on a regular suit by a Court on a regular trial, however, it is as equal and on part with a decree on compromise and will have the same binding effect and conclusive just as the decree passed on the compromises cannot be challenged in a regular appeal, the award of the Lok Adalat being akin to the same, cannot be challenged by any regular remedies available under law including invoking Article 226 of the Constitution of India challenging the correctness of the award on any ground. Judicial review cannot be invoked in such awards especially on the grounds as raised in this writ petition” 12. In the aforesaid case the Award granted by the Lok Adalat was being challenged on technical and non germane ground visa-vis time 7 limit provided for executing the sale deed within two years. However, a three Judge bench of the Hon‟ble Apex Court, in the case of State of Punjab and another Vs Jalour Singh & Ors, reported in 2008 A.I.R. SCW 1196 held that award passed by the Lok Adalat is not appealable and can only be challenged by filing a petition under Articles 226 and 227 of the Constitution. It would be relevant to quote paragraph 12 of the aforesaid judgment as follows: “12. It is true that where an award is made by Lok Adalat in terms of a settlement arrived at between the parties, (which is duly signed by parties and annexed to the award of the Lok Adalat), it becomes final and binding on the parties to the settlement and becomes executable as if it is a decree of a civil court, and no appeal lies against it to any court. If any party wants to challenge such an award based on settlement, it can be done only by filing a petition under Article 226 and/or Article 227 of the Constitution, that too on very limited grounds. But where no compromise or settlement is signed by the parties and the order of the Lok Adalat does not refer to any settlement, but directs the respondent to either make payment if it agrees to the order, or approach the High Court for disposal of appeal on merits, if it does not agree, is not an award of the Lok Adalat. The question of challenging such an order in a petition under Article 227 does not arise. As already noticed, in such a situation, the High Court ought to have heard and disposed of the appeal on merits”. 13. In view of pronouncement of Apex Court in case of State of Punjab (supra) on this issue, I do not find any substance in the submission of respondent no.1 that writ application would not be 8 maintainable against the award passed by the Lok Adalat under section 21 of the Legal Services Authorities Act. In appropriate cases, remedy under Article 226 and 227 of the Constitution would be available to the aggrieved party against award of Lok Adalat. 14. In the instant case, the services of respondent no.1 was retrenched pursuant to a decision of the State Government not to regularize cases of daily wagers, who were appointed after the cut off date of 1.1.1988. Respondent no.1 had filed a suit against the order of termination of his service dated 17.3.1998, as well as for medical reimbursement and compensation. The settlement deed was filed in the Title Suit at the behest of Executive Engineer, as well as District Collector agreeing to reinstatement in service with all past arrears of salary, along with a sum of Rs.2 lacs towards medical reimbursement and Rs.3 lacs towards compensation etc. within a month. The aforesaid settlement did not have authorization of the government and even the learned A.G.P initially voiced objection to filing of such settlement deed in the case. 15. It would appear from letter dated 20.8.2002 of the Superintending Engineer, PHED addressed to the Government Advocate, Saharsa, that Departmental Secretary had made objection to the transfer of the case to Lok Adalat for settlement of any kind. It would also appear from letter of the A.G.P., Saharsa that in fact the Executive Engineer in his earlier letter was not in favour of matter going to Lok Adalat for settlement. Thus, I find that the settlement deed dated 25.4.1996 itself was without any authority of law as both 9 District Collector or Superintending Engineer did not take prior approval of government for undoing the effect of retrenchment, which was done at the direction of government not to regularize services of such daily wagers or temporary employees engaged after cut off date of 1.1.1988. 16. The word „compromise‟ and „settlement‟ referred to in sections 20 and 21 of the Legal Services Authorities Act, 1987 stipulates compromise by competent person or at least having due authorization to enter into such compromise. The retrenchment order was passed pursuant to a directive of the State Government not to regularize daily wagers to have been appointed/engaged after 1.1.1988. This order also stood the test in the Hon‟ble Apex Court on being challenged by some similarly situated employees. Thus, neither the Executive Engineer/Superintending Engineer of the concerned department nor the Collector of the district had any authority to enter into any settlement without approval of the government. Thus, the transfer of the Title Suit to Lok Adalat, the settlement deed dated 25.4.2006, contained in Annexure-6 and Award dated 9.5.2006 of the Lok Adalat, are bad in law and is accordingly set aside. The matter is remitted to the trial court to dispose of the case in accordance with law. 17. Towards the end, I would like to state that the State has not controverted that respondent no.1 lost some of his fingers and toes causing physical disability doing duty while in service on 1.1.1998. The instant order will not come in the way of respondent no.1 in 10 AFR KHAN taking any other remedial measures for seeking compensation and medical reimbursement before appropriate authority, who would dispose of the same without delay. 18. In the result, the writ petition is allowed. (Samarendra Pratap Singh,J)