Pushpendra Kumar vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 2990 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- WRIT - A No. - 14608 of 2019
 
Petitioner :- Pushpendra Kumar
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Cooperative Lko Andors
 
Counsel for Petitioner :- Aditya Narayan Yadav,Rakesh Kumar Singh,Shiv Lal Yadav
 
Counsel for Respondent :- C.S.C.,Rakesh Kumar Chaudhary,Sandhya Chauhan
 

 
Hon'ble Rajan Roy,J.

Heard.

By means of this petition the petitioner has challenged the order dated 24.04.2019 by which his claim for rejoining in the opposite parties-Corporation has been declined.

The petitioner, admittedly, was engaged as Casual Worker on 01.05.2010. An FIR was registered against him in connection with a criminal case bearing case crime No. 352 of 2013, under Sections 147, 148, 149, 307, 302, 506 IPC and 7 Criminal Law Amendment Act at Police Station Bharthana, District Etawah. He was jailed on 05.09.2013. He had faced trial. All along he remained in jail till his actual release consequent to his acquittal on 03.05.2017 in Sessions Trial No. 23 of 2016 (State vs. Pushpendra Kumar Yadav and another). As he was in jail, therefore, obviously he could not inform the opposite parties-Corporation. The Corporation, on the other hand, had no information as to why he had not come to work. Prior to his incarceration, the petitioner claims to have filed a writ petition along with others bearing No. 6353 (SS) of 2012 claiming benefit of Division Bench judgment dated 20.03.2013 rendered in Special Appeal No. 399 of 2011 (U.P. State Warehouses Corporation vs. Sunil Kumar Srivastava and another) which pertained to regularization of services of alleged similarly situated persons. The petition was disposed of on 21.05.2013 in the following terms:

"Heard Sri Pankaj Srivastava learned counsel for the petitioners and Sri R.K. Chaudhary, learned counsel for the respondents.

The petitioners are claiming the benefit of the Division Bench judgment of this Court dated 20th March, 2013 in the case of U.P. State Warehouses Corporation Vs. Sunil Kumar Srivastava and another Special Appeal No.399 of 2011. Having perused the same, it appears that the petitioners are also raising the claim for regularization.

In view of the issues already decided by the Division Bench, let the claim of the petitioners be also considered in accordance with law by the Respondent- Corporation.

The writ petition is disposed of."

However, thereafter the petitioner, as already referred above, was imprisoned and remained in prison from 05.09.2013 till his actual release from jail consequent to his acquittal dated 03.05.2017. After being acquitted, the petitioner filed a writ petition before this Court bearing No. 14050 (SS) of 2018 seeking his rejoining which was decided on 08.02.2019 in the following terms:

"Heard learned counsel for the parties.

With the consent of the learned counsel for the parties, this writ petition is being heard and decided at the admission stage itself.

By means of this writ petition the petitioner has challenged the order/communication dated 19.01.2018, written by the Managing Director, U.P. State Warehousing Corporation, Lucknow/respondent no. 4 to the Additional Chief Secretary, Cooperative Department, Government of U.P., Lucknow/respondent no. 2, whereby it has been informed that the petitioner Sri Pushpendra Kumar, casual clerk is not attending the office since 05.09.2013 and is incarcerated in jail since then and therefore there is no occasion to get him back in service.

Learned counsel for the petitioner submits that the petitioner was engaged as a casual clerk on 01.05.2010 at Warehouse Centre, Bharthana, District - Etawah on a class III post and worked up to 25.06.2010. Thereafter his services were extended/renewed from time to time and he worked continuously up to 03.09.2013. Due to some family dispute, petitioner was falsely implicated in a criminal case being Case Crime No. 352 of 2013, under Sections 147, 148, 307, 302 I.P.C., at Police Station - Bharthana, District - Etawah. In the criminal case the petitioner surrendered before the Court below and was sent to jail. In the aforesaid case, the petitioner was acquitted vide judgment and order dated 03.05.2017, passed by the Additional Sessions Judge, Court No. 6, Etawah, in Sessions Trial No. 145 of 2014, and immediately after being acquitted and released from jail, the petitioner submitted his joining in the department on 15.05.2017, but the respondents have not permitted him to join duties nor have they decided the application submitted by him.

Learned counsel appearing for the U.P. Warehouse Corporation, submitted the order impugned in this petition is infact a communication from the Managing Director, U.P. State Warehousing Corporation, Lucknow/respondent no. 4 to the Additional Chief Secretary, Cooperative Department, Government of U.P., Lucknow/respondent no. 2, which was written in connection with the "Complaint Redressal System" dated 12.05.2017. He further submits that this letter has neither been addressed to the petitioner not a copy thereof has been sent to him. Counsel for the respondent further submits that this letter cannot be challenged in writ petition and same cannot be subjected to judicial scrutiny, inasmuch as, by this letter grievance of the petitioner has not been considered and it is a general communication by the Managing Director to the State Government for the purpose of "Complaint Redressal System".

Heard learned counsel for the parties and perused the record.

The Court agrees with the contention raised by learned counsel for the respondents and in any view of the matter the representation of the petitioner regarding his re-joining in service after his acquittal from the Court of competent jurisdiction, is still pending with the respondents and has not been decided by the impugned letter.

Therefore, it will be equitable that the respondents be directed to decide the representation of the petitioner.

In the light of the aforesaid, it will be open for the petitioner to move a fresh representation alongwith certified copy of this order within ten days from today, and the respondents are hereby directed to decide the representation of the petitioner, after affording him opportunity of hearing, expeditiously, say within a period of two months, from the date of production of certified copy of this order alongwith fresh representation and communicate the decision to the petitioner.

With above observations/directions the writ petition stands disposed of."

In pursuance to the aforesaid order, the petitioner's representation regarding his alleged rejoining has been considered and decided by the impugned order dated 24.04.2019.

Opportunity of hearing was also given to the petitioner. The reason for declining rejoining as given in the impugned order is that; firstly, the petitioner was engaged as a daily wager and he himself stopped coming to work w.e.f. 05.09.2013 which is the date when he was incarcerated. He remained absent from duty for four years for obvious reasons. The tenure of a daily wage worker is on day-to-day basis, therefore, it has been said that his services automatically came to an end when he stopped coming for work. Secondly, it has been stated that on 26.04.2017 a decision has been taken by the Board of the Corporation that henceforth no casual/contractual person would be engaged, but, personnel would be engaged through outsourcing as per need. Thirdly, it has been stated that as per notification dated 24.02.2016, no further engagement of daily wager/work charge/contractual employees would be made without approval of the State Government and any such engagement by the Corporation would be treated as a misconduct.

The counter affidavit further states that so far as the claim of petitioner for regularization is concerned, he is not covered by the cut off date mentioned in the Uttar Pradesh Regularisation of Persons Working on Daily Wages or on Work Charge or on Contract in Government Departments on Group 'C' and Group 'D' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2016 as his appointment is subsequent to 31.12.2001.

Having heard learned counsel for the parties and having considered the facts of the case, the Court finds that the initial engagement of petitioner was on daily wages basis and for whatever reason he could not attend his duties from 05.09.2013 till his release from jail consequent to his acquittal in the criminal case on 03.05.2017 and in the meantime on 26.04.2017, the Board of the Corporation took a decision not to engage any person on casual/contractual basis.

As regards the petitioner's earlier engagement on daily wages, obviously it came to an end when he could not attend his duties for as many as four years. No right as such accrued to the petitioner with regard to any post in the Corporation based on his initial engagement on daily wages in the circumstances already referred hereinabove.

As regards the contention of petitioner's counsel based on his averments in paragraphs 22 and 23 that persons similarly situated their services have been regularized, the Court put a pointed query to the leaned counsel as to whether those similarly situated persons had also not worked for four years or they had also gone to jail with the petitioner as if they had not, then, how their case is similar to that of the petitioner. The petitioner was not attending his duties for as many as four years, may be because of illegal incarceration, but that does not enure to his benefit to claim rejoining as a matter of right in the Corporation especially in view of the subsequent resolution dated 26.04.2017. Considering the nature of his initial engagement, the impugned order does not suffer from any error.

Moreover, as far as regularization is concerned, there is no such prayer in this petition though this was the subject matter of Writ Petition No. 6353 (SS) of 2012 filed by him as claimed. The cut off date mentioned in the Regularization Rules, 2016 and the Government Order dated 24.02.2016 is 31.12.2001. Admittedly, the petitioner was engaged on daily wages based in 2010, therefore, he is not covered by the said Rules. Regularization cannot be made dehors the Rules. The Court has also perused the judgment dated 20.03.2013 (supra). In the facts of this case, the same does help the petitioner.

The petitioner having been engaged initially on daily wages his services came to an end when he did not attend the duties for as many as four years and he cannot claim any right on any post as he was never appointed against any post after due and proper selection. Any engagement would be re-engagement and cannot be termed as rejoining. There is no such right in favour of the petitioner. Of course, if the Corporation can engage the petitioner through outsourcing as per its needs, it is always open for it to do so, irrespective of this judgment. This can be considered by the Corporation.

The writ petition is dismissed.

[Rajan Roy, J.]

Order Date :- 30.1.2023

Santosh/-