Bombay High Court

Nitin R. Deshmukh vs Union Of India, Through Chief ... on 7 August, 2017

Bench: V.K. Tahilramani

Dixit

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION
                           WRIT PETITION NO.7977 OF 2015
        Nitin R. Deshmukh,                    ]
        Aged 42 years,                        ]
        last worked in the office of          ]
        Asstt. Commissioner of Customs,       ]
        (Preventive), Bassein Division,       ]
        Chimaji Appa Road, Killa Bunder,      ]
        Vasai, Dist. Thane 401 001.           ]
                                              ]
        Residing at Remedy Church,            ]
        Choudhari Wadi, Behind Remedy Church, ]
        Vasai, Dist. Thane 401 201.           ] .... Petitioner
                      Versus
        1. Union of India,                    ]
           Through the Chief Commissioner of  ]
           Customs, Mumbai Zone-III,          ]
           New Customs House,                 ]
           Ballard Estate, Mumbai.            ]
                                              ]
        2. The Commissioner of Customs        ]
           (Preventive),                      ]
           New Customs House, Ballard Estate, ]
           Mumbai.                            ]
                                              ]
        3. Asstt. Commissioner of Customs     ]
           (Preventive),                      ]
           Killa Bunder, Chimaji Appa Road,   ]
           Vasai (W), Dist. Thane 401 001.    ] .... Respondents

Mr. Indrajeet R. Kulkarni for the Petitioner. Mrs. Neeta V. Masurkar, a/w. Mr. A.K. Roy and Mr. Vijay Kantharia, for the Respondents.

CORAM : SMT. V.K. TAHILRAMANI & DR. SHALINI PHANSALKAR-JOSHI, J.J.

                         DATE            : 7TH AUGUST, 2017.

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ORAL JUDGMENT : [ Per Smt. V.K. Tahilramani, J. ]

. Rule. Rule made returnable forthwith. Heard finally, by

consent of the parties.

2. Heard Mr. Kulkarni, learned counsel for the Petitioner, and

Mr. Kantharia, learned counsel for the Respondents.

3. The Petitioner has preferred this Petition being aggrieved

by the order dated 8th October 2012 passed by the Central

Administrative Tribunal, Mumbai, in O.A. No.478 of 2007

preferred by the Petitioner.

4. In the said O.A. No.478 of 2007, the Petitioner has prayed

that the orders dated 21st September 2006 and 1st December

2006 passed by the Respondents be quashed and set aside and

the Respondents be directed to take the Petitioner on duty and

grant him all benefits of temporary status and other

consequential service benefits. The said O.A. came to be

dismissed by the Tribunal; hence, this Petition.

5. The Petitioner was engaged as an 'Unskilled Casual

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Labour' on daily-wages in the Marine and Preventive Wing,

Customs Preventive Commissionerate, Mumbai on 25th

September 1997. His services were terminated by letter dated

11th June 2000. The Petitioner's contention is that he has been

working continuously for more than 240 days for several years

and he was illegally terminated w.e.f. 11 th June 2000, even

though there was work available to engage him. After the

Petitioner was terminated on 11th June 2000, he preferred O.A.

No.266 of 2004. Though the Petitioner was terminated on 11 th

June 2000, he preferred the O.A. only in the year 2004. The said

O.A. was disposed of by the Tribunal by directing the

Respondents to consider the representation of the Petitioner by

passing a reasoned and speaking order and communicate the

same to be Petitioner within three months. The said

representation of the Petitioner came to be rejected by the

concerned authority vide order dated 21 st September 2006 and

again review also came to be rejected by order dated 1 st

December 2006, hence, he preferred the above mentioned O.A.

6. In view of the above, it would be necessary to refer to the

appointment order of the Petitioner, which reads as under :-

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"OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS (PREVENTIVE), KILLA BUNDER, BASSEIN DIVISION, DIST. THANE.

The following Casual Worker/Sweeper are hereby appointed w.e.f. 8.9.1994 on contingent basis for a period of two months as mentioned below :

Name & Designation Rate Service Period Upto

1. Shri N.R. Deshmukh '13.00 '7.11.94

2. Shri G.S. Gohil '13.00 '7.11.94

The posting of the Casual Labour/Sweeper will be at Killa Bunder, Custom Office, Vasai.

The said candidate is hereby given to understand that the appointment is purely on casual and temporary basis and do not confer on them any right for Govt. service. They are further given to understand that their services are liable to be terminated after two months from the date of appointment without giving any notice or reason thereof.

Sd/-

ASSISTANT COLLECTOR OF CUSTOMS (P) BASSEIN DIVISION

F.No.11/3102/94 Bassein, the 8th Sept. 94

Copy to :1. Shri N.R. Deshmukh, Casual Worker.

2. Shri. G.S. Gohil, Sweeper.

3. A.C. (Adm.), M & P Wing, Bombay.

4. Bill Section."

[Emphasis Supplied]

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7. Thus, from the above appointment order, it is clear that

the Petitioner's appointment was on casual and temporary basis

for a period of two months, which was continued with breaks. It

is not denied that similar appointment orders were issued from

time to time.

8. It is also seen that the Petitioner was appointed as 'Casual

Labour' on contract basis as per order dated 08.09.1994 and it

was clearly mentioned in the said order that, "the appointment

was purely on casual and temporary basis and does not confer

on him any right for Government service". The Petitioner was

further given to understand that, "his services were liable to be

terminated after two months from the date of appointment

without giving any notice or reasons thereof."

9. The Petitioner was terminated vide order dated 11 th June

2000. The cause of action, therefore, arose on 11 th June 2000.

As stated earlier, the Petitioner preferred O.A. only in the year

2004 along with 9 other applicants and the Respondents were

directed to consider their representations and pass appropriate

orders. After termination of services on 11th June 2000, the

Petitioner has not been re-appointed.

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10. The learned counsel for the Petitioner submitted that there

were other similarly situated employees and the Central

Administrative Tribunal has granted them the relief similar to

that which was prayed by the Petitioner. This High Court has

confirmed the said order, which has again been confirmed by

the Supreme Court. The learned counsel for the Petitioner

submitted that, in such case, the Petitioner should also be

granted reliefs prayed for by him. As far as this contention is

concerned, it is seen that, as regards the other employees are

concerned, they were in continuous service when they preferred

O.A. in 2004; whereas, the Petitioner was terminated in the year

2000 and thereafter he was not in service. This is the

distinguishing factor as far as the other employees are

concerned. As far as Petitioner is concerned, admittedly, after

the year 2000, the Petitioner was not in service. Hence, he

cannot plead that the facts in the case of those employees and

in his case are the same and he cannot get any benefit of the

orders passed in relation to the other employees.

11. The learned counsel for the Petitioner has placed reliance

on the decision of the Supreme Court in the case of Union of

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India and Ors. Vs. M.K. Sarkar, reported in (2010) 2 SCC 59,

wherein, in paragraph No.26, it was observed as under :-

"26. A claim on the basis of guarantee of equality, by reference to some one similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to some one else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that some one else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that some one who may not be entitled to the relief has been given relief illegally, is not a ground to grant relief to a person who is not entitled to the relief."

12. From the facts stated above, it cannot be said that the

Petitioner was similarly placed as the other employees, whose

OA was allowed and the said order was confirmed by the High

Court and the Supreme Court. Hence, this decision would not

help the Petitioner in any manner.

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13. In the very same Judgment, on which reliance was placed by learned counsel for the Petitioner, the Supreme Court has further held as under :-

"The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."