Airport Authority Of India vs Dharm Pal
2006 Latest Caselaw 179 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of learned Single Judge dated 10.3.2004 by which he has allowed the appeal. The facts have been stated in the judgment of the learned Single Judge and hence we are not repeating the same except where necessary.

2. The appellant is a statutory authority constituted under the International Airports of India Act which is an Act of Parliament. Respondent (writ petitioner) was given a call letter dated 1.7.1983 by the Employment Exchange requiring him to report to the appellant and thereafter he was appointed as a daily wage operator in the services of appellant. However, his services were terminated on 1.4.1984. Against this he raised an industrial dispute and his termination was set aside by the Industrial Tribunal vide order dated 25.1.1990. The writ petition against the award was dismissed by this court vide Annexure VII to the writ petition. The judgment of this court in the aforesaid writ petition No. 899/90 reads as follows:-

The petitioner raised a pure question of fact. We do not see any ground to interfere under Article 226 of the Constitution of India. Dismissed.

3. It is alleged in paragraph 9 of the petition that after the petitioner, the respondents had appointed two persons namely C.P.Aggarwal and Prem Singh as daily wage operator (E&M). The services of these two persons had also been terminated along with petitioner. However, the respondents had accepted the illegality of the termination of these persons and took back these persons in service in May, 1986, but with illegal and malafide intention did not take petitioner in service. In the judgment of this court dated 13.5.1993 in the case of C.P.Aggarwal being Writ Petition No. 2902/91 and Prem Singh being Writ Petition No. 3278/91. It was held by the D.B. of this Court that respondents were bound to regularize the petitioner in view of the settlement arrived at between them and since regular vacancy was available on 13/14.11.1986. Consequently, C.P.Aggarwal and Prem Singh were regularized and the petitioner has not yet been regularized.

4. The appellant had filed a counter affidavit in the writ petition and we have perused the same. In paragraph 9 of the counter affidavit, it is stated that C.P.Aggarwal and Prem Singh were engaged as daily wage operator w.e.f. 1.7.83 and 3.8.83 respectively. Subsequently, their services were discontinued on 29.2.84 and 31.3.84 respectively. Unlike the petitioner who had accepted the discontinuance of his services, and did not move the conciliation machinery till very late, these two persons initiated conciliation proceedings without any delay. During the pendency of the conciliation proceedings, and as per the conciliation settlement arrived during those proceedings, these two persons were taken back on duty as daily wagers. It is alleged that petitioner was gainfully employed anyway and, therefore, he did not initiated conciliation proceedings.

5. It is further stated in the counter affidavit that C.P.Aggarwal and Prem Singh were regularized pursuant to the judgment of this court dated 13.5.1993 on the basis of terms of settlement between these two persons and the appellant, whereas in the case of petitioner, there is no such settlement.

6. The distinction between the case of C.P.Aggarwal and Prem Singh on the one hand and the writ petitioner on the other is that while the writ petitioner filed the writ petition against the termination of his service and C.P.Aggarwal and Prem Singh had filed a writ petition and obtained an order of regularization. In paragraph 12 of the counter affidavit, it is stated that petitioner was engaged purely on daily wage basis from 16.8.83 and had been necessitated by absenteeism in the cadre of regular operator (E&M). Subsequently, when there was no longer any requirement for his services, the same were discontinued w.e.f. 1.4.84. He had not been completed 240 days on that date. There is no question of regularization.

7. It is further stated in paragraph 12 that in terms of terms of the policy of International Airport Authority of India which has also incorporated by the Supreme Court of India order dated 14.12.92, only departmental candidates are required to be considered for the post of operator.

8. We have considered all and we are of the opinion that this writ has to be allowed as we have held in Delhi Tapedic Unmoolan Samiti v. Babita Rani and Ors. LPA 2554/2005 decided on 16.1.2006. This court has no power to issue an order of regularization, since regularization is the executive function and can only be ordered by the competent Authority and not by this Court. The entire case law has been considered in our decision in Delhi Tapedic Unmoolan Samiti v. Babita Rani and Ors. which may be seen.

9. As noted above, there is distinction between the case of petitioner on the one hand and C.P.Aggarwal and Prem Singh on the other. Petitioner has not even worked for 240 days when his service was terminated on 1.4.84. He has been employed purely on daily wage basis on 16.8.83 on account of absenteeism in the cadre of regular operator (E&M). Moreover, as observed, in terms of policy of the appellant which has incorporated by the Supreme Court of India(tm)s order dated 14.12.92, only departmental candidates are required to be considered for the post of Operator (E&M). Hence, the appellant can have no grievance.

10. Appeal is allowed and impugned judgment is set aside.