Akhilesh Kumar Sharma vs Damodar Valley Corporation & Ors
2021 Latest Caselaw 240 Cal

19-01-2021
 ct no. 13
  Sl.18
    sp

                           WPA 10271 of 2020

                         Akhilesh Kumar Sharma
                                -Versus-
                Damodar Valley Corporation & Ors.


             Mr. Durga Prasad Dutta,
             Mr. Souvik Sen,
             Mr. S. Ganguly
                                         ...for the petitioner
             Mr. Joydip Kar,
             Mr. Ranjay De,
             Mr. Basabjit Banerjee
                           ...for the respondent nos. 1 to 4

The writ petitioner was empanelled (said

panel) as a casual worker on the basis of

number of days worked as on December 31,

1986. He had worked for 225 days.

By an order passed by a Co-ordinate

Bench of this Court in WP 22988 (W) of 2010 on

August 28, 2014, the writ petition was disposed

of directing absorption of casual employees from

the said panel against permanent vacancy or for

the purpose of any further casual engagement.

The petitioner was not a party to the writ

petition.

A contempt application was filed by the

petitioner for violation of the order dated

28.08.2014 which was dismissed.

The matter was carried in appeal in MAT

1381 of 2017 which was dismissed as

withdrawn with liberty to file afresh and self-

same cause of action.

An application under Article 136 of the

Constitution was moved before the Hon'ble

Supreme Court in SLP (Civil) Diary No. 41318 of

2017 in which, on November 4, 2019, the

Hon'ble Supreme Court, setting out the

operative part of the order of the Single Bench

dated August 28, 2014 (supra), inter alia held

that, while there could not be any contempt

against the DVC, the latter was still obliged to

comply with the order dated 28.08.2014 (supra).

Similar orders passed on November 23,

2015 in Civil Appeal No. 13766 of 2015 (Murli

Gope and others vs. DVC and Ors.) was also

relied upon in this regard.

In the said SLP Nos. 26224-26225 of

2019, an I.A. Nos. 191988 and 191997 of 2019

were filed by the DVC seeking modification of

the order of the Hon'ble Supreme Court dated

November 4, 2019.

The said I.As. were disposed of by the

Hon'ble Supreme Court in, inter alia orders

dated February 5, 2020 and March 2, 2020. The

order dated March 2, 2020 is set out herein

below.

"Heard learned counsel for the parties. We are appalled to notice the untenable plea taken by the applicant for not giving effect to the order dated 04.11.2019 passed in SLP© D. No. 41315 of 2017 and SLP(C) D. No. 41318 of 2017 in its letter and spirit. The stand taken by the applicant, to say the least, is preposterous and an attempt to circumvent the directions issued by this Court on 04.11.2019 and further clarified vide order dated 05.02.2020 passed in the mis. applications under consideration. No further elaboration thereof is required.

We direct the authorities to comply with the directions contained in the aforementioned orders without any exception within two weeks from today. No further indulgence will be shown to the concerned authorities who are obliged to comply with the same. Failure to comply would result in having committed aggravated contempt of the court, which will be viewed sternly.

We place on record our disapproval about the tenor of the affidavit filed in response to order dated 05.02.2020.We find that the affiant has not disclosed this specific fact noted in the order dated 05.02.2020, which he was expected to disclose.

In the peculiar facts of the present case, the misc. applications are rejected with the aforesaid directions."

Counsel for the petitioner would argue

that a plain reading of the orders of the Hon'ble

Supreme Court passed in the SLPs referred to

herein above would indicate that in substance

and essence the Hon'ble Supreme Court had

upheld the direction of the Single Judge dated

August 28, 2014.

Mr. Joydip Kar, learned Senior Advocate

appearing for the DVC would argue that the

orders of the Hon'ble Supreme Court in the

SLPs (supra) must be deemed under Article 142

of the Constitution of India and hence should

not be treated as a precedent. He placed the

decision of the Hon'ble Supreme Court in the

case of State of Punjab and others vs. Rafiq

Masih (Whitewasher) reported in (2014) 8 SCC

883, particularly, paragraphs 11 and 12 thereof

where a distinction between the distinction

between Article 141 and 142 of the Constitution

of India has been explained.

What is, however, required to be examined

is as to whether the decisions of the Hon'ble

Supreme Court in the SLPs referred to herein

above are under Article 142 of the Constitution

of India are restricted to the case of those

persons who filed the writ petitions and

obtained the order dated 28.08.2014 from the

Single Bench of this Court.

Mr. Kar next relied upon the decision of

the Hon'ble Supreme Court in the case of State

of Uttar Pradesh and others vs. Arvind

Kumar Srivastava and others reported in

(2015) 1 SCC 347, particularly, paragraphs 22,

21(1) and 22(2) thereof. He would submit that

the petitioner is a fence sitter who was watching

his colleagues litigate without joining them. Mr.

Kar would, therefore, submit that the petitioner

cannot be given the benefit of the order of the

Single Judge dated 28.08.2014.

Mr. Kar would finally submit that the

petitioner is a casual worker and is seeking

absorption in the Group-D post and must be

asked to approach the authorities under the

Industrial Disputes Act, 1947 for the purpose of

seeking relief that he has claimed in the instant

writ petition.

I have carefully considered the decisions

cited and the arguments of Mr. Joydip Kar,

learned Senior Counsel for the DVC and the

counsel for the petitioner.

This Court is of the view that once a

specific decision of the High Court i.e. the order

dated 28.08.2014 is not only set out, but

specifically directed by the Supreme Court to be

complied with by a respondent, the same is

required to be done irrespective of who the

petitioners are. The writ petitioner herein was

admittedly in the panel and/or list that is

referred to in the order dated 28.08.2014. The

list is available at Annexure-P/2 to the instant

writ application where petitioner is at serial no.

73.

In the said circumstances given a clear

and exclusive nature of the order dated

November 4, 2019, one need not go into the

question as to whether the orders dated

04.11.2019, 05.02.2020 and 02.03.2020

(supra), by the Supreme Court are under Article

141 or 142 of the Constitution of India.

What is sought to be enforced by the

petitioner is not general claim. The petitioner

seeks implementation of a specifically approved

order by the Hon'ble Supreme Court of a Single

Judge of this Court. Hence, the decision of the

Hon'ble Supreme Court in the case of Rafiq

Masih (supra) would not come to the aid of the

DVC.

In so far as the contention that the writ

petitioner is a fence sitter and the decision of

the Supreme Court in the case of State of Uttar

Pradesh and others vs. Arvind Kumar

Srivastava and others (supra), one must note

the facts of the said case. It was a case of

recruitment of Homeopathy Compounders or

ward boys of the year 1986 in the State of Uttar

Pradesh. An order of the Chief Medical Officer,

who cancelled the appointments of certain wait

listed candidates who were asked to join when

the merit listed candidates did not show up was

in issue. The said order was initially challenged

in 1986 in a suit filed by some respondents

therein but the suit was abandoned. Some other

candidates also from the said cancelled waiting

list challenged the order of cancellation before

the Central Administrative Tribunal in 1987 and

succeeded in the year 1991.

The respondents filed a representation

before the State in the year 1995 and then

moved the High Court and matter came to be

dealt with by the Supreme Court.

It is in that context that the Hon'ble

Supreme Court held that delay and latches is a

clear bar to remedy under Article 226. It was

found that allowing remedy to the respondents

would prejudice employees working for a long

period of time.

The Hon'ble Supreme Court then went on

to explain the exceptions to the general principle

that the benefit of an order quashing a wrong

decision should go to all affected and similarly

placed persons. It is in that context that Para

22 of the said decision was rendered.

The said decision is, therefore

distinguishable from the facts of the instant

case. The petitioner is a casual labourer and

differently abled than a educated Homeopathic

Compounder. The petitioner, according to this

Court, cannot be deemed a fence sitter merely

because he did not approach Court. His remedy

was already allowed by reason of the judgment

dated 28.08.2014 which referred to absorption

of the empanelled candidates. The affirmation of

the same by the order of the Supreme Court in

2019 is in fact a reiteration of this right.

Yet another distinguishing factor is that

the respondent DVC or anybody would not be

prejudiced by the delay in the filing of the

instant petition. The writ petitioner, according to

this Court, would definitely be entitled to the

benefit of the judgment dated 28.08.2014 as

affirmed, albeit in an SLP arising out of a

contempt proceedings.

In the instant case what is, in fact, clear

and explicit is the affirmation of the order dated

28.08.2014 and a direction upon the DVC to

specifically comply with the same by the Hon'ble

Supreme Court.

In so far as the last argument of Mr. Kar

is concerned, this Court, given the nature of

relief sought by the petitioner, based on the

order of a Co-ordinate Bench of this Court dated

28.08.2014 (supra) is of the clear view that

interpretation of orders of this Court and orders

of the Hon'ble Supreme Court, should not be left

to the Industrial Tribunal.

In view of the above, this Court holds that

the writ petitioner is entitled to be absorbed

against any vacancy in the Group-D post

commensurate with the nature of work he has

performed in the DVC and the DVC is directed

as such.

With the aforesaid observations, the

instant writ petition is allowed.

There shall, however, be no order as to

costs.

Urgent photostat certified copy of this

judgment, if applied for, be given to the parties

upon compliance of all formalities.

(Rajasekhar Mantha, J.)