Allahabad High Court
Lalit Mohan Tewari vs State Of ... on 3 August, 2023
Bench: Attau Rahman Masoodi, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:51268-DB
Court No. - 2
Case :- SPECIAL APPEAL DEFECTIVE No. - 525 of 2018
Appellant :- Lalit Mohan Tewari
Respondent :- State Of U.P.Throu.Prin.Secy.Lok Nirman Vibhag Lko.And Ors.
Counsel for Appellant :- Dadu Ram Shukla D.R. Shu
Counsel for Respondent :- C.S.C.
Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
(C.M. Application No. 105665 of 2018 : Application for Condonation of Delay)
(1) Heard Shri D.R. Shukla, learned Counsel representing the appellant and learned Counsel representing the State/ respondents.
(2) There is delay of 220 days in filing the special appeal. The appeal is accompanied with an application for condonation of delay supported by an affidavit.
(3) Learned State Counsel representing the respondents does not have any objection, if delay in filing the instant appeal is condoned and the matter is heard on merits.
(4) Cause shown in the affidavit filed in support of application for condonation of delay is satisfactory and in absence of any objection, application for condonation of delay is allowed and delay in filing the special appeal is hereby condoned.
(Order on Appeal)
(5) This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been filed by the appellant, assailing the judgment and order dated 18.01.2018 passed by the learned Single Judge in Writ Petition No. 6715 (S/S) of 2011, whereby the learned Single Judge having dealt with the right of the appellant has ultimately dismissed the writ petition holding that no right for continuity stood vested in the present appellant merely on the basis of his engagement as daily wager for some time. The learned Single Judge has returned the following observation and findings:
"15. As noted in order dated 18.5.2007 (supra), as extracted above, the controversy has already been settled by the court vide order dated 15.1.2004 rendered in Writ Petition No.7580 (S/S) of 1992 (supra). The orders have been extracted hereinabove for ready reference.
16. This third petition for the same relief cannot be entertained. The facts and circumstances brought out by the petitioner have already been considered and adjudicated. There has to be a terminus to every lis. The petitioner cannot be allowed to file petition after petition, simply because the petitioner has not been given employment. This is particularly so because the petitioner has not established his substantial right to employment.
In such circumstances, no order in favour of the petitioner in this writ petition can be passed.
17. The petition is accordingly dismissed."
(6) Learned Counsel representing the appellant has submitted that although the appellant/writ petitioner had worked 240 days in a calendar year but even then the claim of the writ petitioner/ appellant for re-engagement in service was declined by ignoring orders dated 15.01.2014 and 18.05.2007 passed in Writ Petition Nos. 7580 (S/S) of 1992 and 7832 (S/S) of 2005, respectively, which have been filed by the appellant and instead his junior was given employment. Aggrieved by the action of the respondents, the appellant/writ petitioner preferred Writ Petition No. 6715 (S/S) of 2011 before this Court. The learned Single Judge has erred in dismissing the writ petition vide impugned order dated 18.01.2018.
(7) Per contra, learned State Counsel representing the respondents has contended that the claim of the appellant was considered in pursuance of the orders dated 15.01.2014 (supra) and 18.05.2007 (supra) passed by this Court, but as there was no post/work available, his claim for re-engagement was declined. He also stated that persons junior to the appellant were neither engaged nor regularized. The learned Single Judge has rightly dismissed the writ petition.
(8) Having regard the submissions advanced by the learned Counsel for the parties and gone through the records available before this Court in the instant special appeal, we find that the learned Single Judge took note of the two previous orders passed in two different writ petitions filed by the appellant, which were decided by the learned Single Judge vide orders dated 15.01.2014 and 18.05.2017 and after analyzing these two orders, the learned Single Judge has arrived to the conclusion that the appellant/writ petitioner has filed third writ petition i.e. writ petition No. 6715 (s/s) 2011, for the same cause and therefore, the same cannot be entertained.
(9) The learned Single Judge has also recorded a finding that the facts and circumstances of the case have already been considered and adjudicated by the learned Single Judge in earlier round of litigations, which have been filed by the appellant/writ petitioner himself and further simply because the writ petitioner/appellant has not been given employment, he cannot be allowed to file petition after petition particularly so because the writ petitioner/appellant has not established his substantial right of employment. It would be appropriate to quote extensively the impugned order, wherein the learned Single Judge has quoted the two earlier orders passed in two different writs filed by the same petitioner to arrive at the impugned decision. The learned Single Judge has observed in the impugned order as inter-alia :-
"10. The petitioner has earlier filed two cases for similar relief. The first petition filed by the petitioner bears Writ Petition No.7580 (S/S) of 1992: Lalit Mohan V/s. Pramukh Abhiyanta, Lok Nirman Vibhag and others. The said petition was disposed of vide order dated 15.1.2004 in the following terms:-
"Heard learned counsel for the petitioner and the learned Standing Counsel. By means of this petition, the petitioner has prayed for a writ in the nature of certiorari quashing the oral order of termination of service of the petitioner and a writ in the nature mandamus commanding the opposite parties to allow the petitioner to work as Cleaner and to pay him wages regularly every month.
Brief facts of the case are that the petitioner was initially engaged as Cleaner on daily wage basis on 1.12.1990 in the Asthai Vidhyut Yantrik Khand, Lok Nirman Vibhag, Gonda and since then he has been working continuously without any break and he was paid wages on monthly basis on muster roll, as is evident from the Certificate issued by the Sahayak Abhiyanta (Pratham), Asthai Vidhyut Vitirik Khand, Lok Nirman Vibhag, Gonda dated 28.9.1992, a photo copy of which is annexed as Annexure-1 to the writ petition. It has been averred in Paragraph 3 of the writ petition that after completing more than one and half year's continuous service the petitioner's services were sought to be terminated while other persons, namely, Rajeshwar Pandey, Taufeeq Ahmad and Sanjay Singh, who are juniors to him were retained in service. It has been submitted by the learned counsel for the petitioner that the petitioner had completed 240 days, therefore, he is entitled to get the benefit of re-engagement as provided in Paragraph 6(Q) of the Industrial Disputes Act, which is reproduced as under :-
"6(Q). Re-employment of retrenched workmen Where any workmen retrenched and the employed proposes to take into his employee any persons, he shall in such manner as may be prescribed give an opportunity to the retrenched workmen who offer themselves for re-employment shall have preference over other persons.
Learned Standing counsel has not disputed that the Lok Nirman Vibhag is an Industry and the case of the petitioner as covered under the Industrial Disputes Act. Therefore, in case whenever persons are required for engagement, the persons who have been disengaged, as provided under Section 6(Q) of the U.P. Industrial Disputes Act, referred to above.
Therefore, this writ petition is disposed of finally with the direction to the opposite parties that in case the work and post remains available in future and there is need for engaging the persons like the petitioner in the department, his candidature for re-engagement shall be considered first as provided under Section 6(Q) of the U.P. Industrial Disputes Act, referred to above."
(10) The learned Single Judge in the impugned order has observed that the petitioner was apparently not re-engaged/re-employed in view of the aforesaid direction of this Court, which led to filing of the second writ petition being Writ Petition No.7832 (S/S) of 2005 (Lalit Mohan Vs. State of U.P. and others.), which was dismissed vide order dated 18.5.2007, in the following terms :-
"It has been submitted by the learned Standing Counsel that for the same cause of action petitioner had filed a writ petition no.7580 (SS) of 1992, which was decided finally by judgement and order dated 15.1.2004.
Accordingly, for the same cause of action present writ petition is not maintainable.
While deciding the issue by judgment and order dated 15.1.2004 passed in writ petition no.7580 (SS) of 1992, this Court had directed the respondents that in case work and post are available in future, they shall engage the persons like petitioners in the department. Since the controversy has already been settled by this Court vide judgment and order dated 15.1.2004 passed in writ petition no.7580 (SS) of 1992, present writ petition is not maintainable hence dismissed. However, the petitioner shall be entitled for benefit, which shall accrue to him in pursuance to earlier judgment passed in writ petition No.7580(SS) of 1992."
(11) Apparently, the argument being advanced by the learned Counsel for the appellant in the present special appeal in the year 2023, has been already noted and dismissed vide order passed on 15.01.2004 in the first round of litigation. The learned Counsel for the appellant/petitioner has failed to point out any perversity in the impugned order passed by the learned Single Judge and has also failed to show that the writ petition No. 6715 (S/S) of 2011, which is dismissed vide impugned order, is not the third writ petition for the same cause of action. As rightly held by the learned Single Judge, the appellant cannot go on filing writ petition after writ petitions merely because the orders are not to his liking. There ought to be a quietus to the litigation at some point of time. The present appeal prima-facie appears to be an abuse of the process of this court.
(12) In view of the aforesaid, we are in full agreement with the view taken by the learned Single Judge. There appears to be no illegality or irregularity in the impugned order.
(13) The special appeal being bereft of merit is, accordingly, dismissed. However, in the peculiar facts of the present case and taking a lenient view, there shall be no order as to costs.
(Om Prakash Shukla, J.) (Attau Rahman Masoodi, J.)
Order Date :- 3.8.2023
Shubhankar/Ajit/-
