Ramesh Chandra Tiwari vs U.P. State Ware Housing ...
2019 Latest Caselaw 6263 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- SERVICE SINGLE No. - 1144 of 2012
 

 
Petitioner :- Ramesh Chandra Tiwari
 
Respondent :- U.P. State Ware Housing Corporation Through Its Managing Dir
 
Counsel for Petitioner :- Ramesh Srivastava,Anshuman Singh Rathore
 
Counsel for Respondent :- U.N.Mishra,Rakesh Kumar Chaudhary
 

 
Hon'ble Abdul Moin,J.

1. Supplementary counter affidavit filed today is taken on record.

2. Sri Anshuman Singh Rathore, the learned counsel for the petitioner states that he does not intend to file any reply thereto and the matter may be heard and decided on merits.

3. Heard learned counsel for the petitioner and Sri Rakesh Kumar Chaudhary, learned counsel appearing for respondents.

4. By means of the present petition, the petitioner has challenged the order dated 19.11.2011, a copy of which is Annexure-1 to the petition, by which representation preferred by the petitioner has been rejected.

5. The case set forth by the petitioner is that he was appointed on contract basis for six months as Technical Assistant through an order dated 07.04.2000, a copy of which is Annexure-2 to the petition. Thereafter, the petitioner was allowed to continue to work beyond six months when all of a sudden he was stopped from working since January 2010. Being aggrieved with the same, the petitioner preferred Writ Petition No.5912 (SS) of 2011 wherein this Court vide order dated 03.09.2011 directed the respondents to decide the representation of the petitioner. In pursuance thereof, the respondents have rejected the representation of the petitioner by indicating that the petitioner had been appointed on contractual basis as Technical Assistant at Maraila Center. As the center did not receive the State pool for the said center consequently storage work is not being carried out at Maraila center.

6. Learned counsel for the petitioner while seeking to challenge the said order submits that the impugned order rejecting the claim of the petitioner reflects patent non-application of mind as in January 2010 the petitioner was working at Jagarganj center and hence merely because the State pool had ended at Maraila center, the same cannot be a ground for rejection of his claim. The other ground which has been taken to challenge the impugned order is that another employee namely Akhilesh Kumar Pandey who was also engaged along with the petitioner on contract basis though disengaged yet has again been reinstated in service. It is also contended that the representation has been rejected by the General Manager (Establishment)(Vigilance) who was not a party in the earlier petition filed by the petitioner and the direction of the Court was for the respondents to decide the said representation and as such the General Manager (Establishment)(Vigilance) who had decided the representation had no authority to do so and consequently on this ground also the impugned order merits to be quashed and set-aside. No other ground has been urged by learned counsel for the petitioner.

7. Learned counsel for the petitioner contends that by disengaging the services of the petitioner since January 2010 the respondents have acted in patently arbitrary and illegal manner and the said order is hit by Articles 14 and 16 of the Constitution of India inasmuch as once one set of contractual employee has been engaged by the respondents consequently there was no occasion for the respondents to disengage the petitioner and allow another employee to continue. Even otherwise, once the petitioner was not working at the center which has been indicated in the impugned order i.e. Maraila Center consequently the same again reflects patent non-application of mind. Thus, it is contended that the impugned order merits to be set-aside with further direction for reinstatement of the petitioner on the post on which he was working prior to passing of the impugned order.

8. On the other hand, Sri Rakesh Kumar Chaudhary, learned counsel for the respondents, on the basis of averments contained in the counter affidavit submits that the petitioner was appointed on contract basis through order dated 07.04.2000 which contract was for a maximum period of six months with a further provision that the said contract can be terminated at any time. It is contended that the petitioner was subsequently continued on contract basis and his last extension was up to 23.12.2009. This fact has specifically been stated in paragraph 5 of the supplementary counter affidavit dated 01.08.2019 which incidentally has not been denied by learned counsel for the petitioner. It is further contended that a huge loss amounting to Rs.87,34,547.32 had occurred at the Maraila center in which disciplinary proceedings were initiated against the officials concerned. The petitioner and one Akhilesh Chandra Pandey were prima facie found responsible for being involved in the huge loss caused to the Corporation. However, as the petitioner and other person were contractual employees consequently their services were terminated while disciplinary proceedings were initiated against the regular employees. As the contract of the petitioner was valid up to 23.12.2009 and it was opined that no loss should be occasioned to him consequently the petitioner was shifted to Jafarganj center for a few days. However, the petitioner, perhaps in anticipation of an approval being received for his subsequent engagement, was continued at the said center and continued to work there but the payment has only been made as per the contract up to 23.12.2009. Thus, it is contended that once a huge loss has been caused at Maraila center and the petitioner being only a contractual employee has got no right to the post and his services automatically came to an end at the end of the contract. Sri Chaudhary also argues that in order to not cause any harm to the service career of the petitioner, a formal order was issued terminating his services instead of passing a stigmatic order in this regard. Thus, it is contended that merely because the petitioner at the time of his disengagement was working at Jagarganj center would not give any right to the petitioner to claim appointment or to find flaw with the impugned order dated 19.11.2011.

9. As regards the ground taken by learned counsel for the petitioner of the representation having been decided by the General Manager (Establishment) (Vigilance) who was not a party in the previous petition, it is contended by learned counsel for the respondents that the order has been passed by the competent authority who was to decide the said representation and merely because he was not impleaded as a party would not and cannot preclude the competent authority from deciding the said representation.

10. Heard learned counsel for the contesting parties and perused the records.

11. From perusal of the records, it clearly transpires that the petitioner was appointed on contract basis as Technical Assistant through order dated 07.04.2000. The order of contractual appointment itself indicates that the petitioner was being appointed for a maximum period of six months. The contract could be terminated at any time without assigning any reason. The petitioner has been continued thereafter on account of his contractual period being extended the details of which have been indicated in paragraph 7 of the supplementary counter affidavit dated 01.08.2019. From perusal of the said chart and specific averment being made in paragraph 5 of the supplementary counter affidavit of the last extension of the contractual period of the petitioner, it comes out that the last date to which the contract had been extended was 23.12.2009. It also comes out that a loss was caused at Maraila center amounting to approximately 87 lakhs in which the petitioner and another employee were found prima facie responsible. As the petitioner's contractual period was to end on 23.12.2009 and in order to ensure that no loss is caused to him, he was shifted to Jagarganj center till 23.12.2009 but he continued to work thereafter till January 2010 when on account of the contract having come to end no further work was allowed to him. It is settled proposition of law that a contractual employee has got no right to the post and his service conditions would be governed by the terms and conditions of the contract. From perusal of the supplementary counter affidavit it has come out that a huge loss of approximately 87 lakhs was occasioned at Maraila center where the petitioner was working and the petitioner was also found prima facie responsible for the same. Thus, in case the respondents have proceeded to not extend the contract subsequent thereto, no fault can be found with the same and merely because the petitioner was working at Jafarganj center at the time of his disengagement yet Maraila center has been closed down, the same would not give any right to the petitioner to claim continuance on contractual basis. The other aspect of the matter that the representation of the petitioner has been decided by a person who was not a party in the previous petition may not detain this Court inasmuch as the representation has been decided by the competent authority who was expected to decide the same and as such no fault can be found in this regard also.

12. Accordingly, taking into consideration the aforesaid discussions, no ground for interference is made out.

13. However, before parting with the case, the Court finds that a specific averment has been made by the petitioner in paragraph 19 of the writ petition of one Sri Akhilesh Kumar Pandey having been initially disengaged but thereafter having been continued on contractual basis. Though the said averment has not been specifically denied in the counter affidavit filed by the respondents yet from perusal of the supplementary counter affidavit dated 01.08.2019 it comes out that Sri Akhilesh Kumar Pandey, Technical Assistant contractual had been disengaged from the State Warehouse Center Maraila on 26.01.2010 vide letter dated 25.01.2010, a copy of which is Annexure SCA-8 to the supplementary counter affidavit. In paragraph 5 of the supplementary counter affidavit an averment has been made of Sri Akhilesh Kumar Pandey (indicated as Akhilesh Chandra Pandey) having also been found prima facie responsible for loss at Maraila center. However, the specific averment of the petitioner of Sri Akhilesh Kumar Pandey having been engaged subsequently has not been denied by the respondents. Consequently, it comes out that another person who was involved in the said loss along with the petitioner, as contended by the respondents in the supplementary counter affidavit, has been engaged subsequently. Thus, in this view of the matter, it would be open for the petitioner to approach the Managing Director of the Corporation for his engagement and it would be open for the respondents to consider the engagement of the petitioner on any contractual post in case there is no legal impediment. With the aforesaid observations, the writ petition is disposed of.

Order Date :- 1.8.2019

A. Katiyar