Anit Kumar vs The Chairman Tariff Authority For ...
2010 Latest Caselaw 1515 Del

                       *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                 W.P.(C) No.1788/2001

%                                                      Date of decision: 18th March, 2010

ANIT KUMAR                                                                   ..... Petitioner
                                  Through: Mr. Mobin Akhtar, Advocate.

                                              Versus

THE CHAIRMAN TARIFF AUTHORITY
FOR MAJOR PORTS & ORS.                                   ..... Respondents
                   Through: Ms. Rajeshwari Shukla, Mr. Rajiv Dubey & Mr.
                            Ranjan Narain, Advocates for R-1&2.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.         Whether reporters of Local papers may
           be allowed to see the judgment?                     No

2.         To be referred to the reporter or not?              No

3.         Whether the judgment should be reported             No
           in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner seeks quashing and setting aside of the action of the respondent

no.1, Tariff Authority for Major Ports of dispensing with the services of the petitioner

w.e.f. 9th October, 2000 and seeks a writ of mandamus directing his reinstatement with

all consequential benefits.

2. The respondent Tariff Authority for Major Ports has been created by an

amendment of the year 1997 to the Major Port Trusts Act, 1963. The said Authority

consists of a Chairman and two Members who are empowered by Sections 48 to 50 of

the said Act to regulate the tariff and conditionalities governing application of tariff for

services rendered by Major Port Trusts as well as for use of properties of the said Port

Trust.

3. The petitioner claims that he was selected and engaged as a daily wage peon in

the office of the respondent w.e.f. 9th September, 1999 and continued in the said post

uninterruptedly without any break whatsoever till 9th October, 2000 when his services

were discharged. It is further his case that certain other persons also engaged as daily

wage peons by the respondent after such engagement of the petitioner were however

allowed to so continue. The petitioner claims such action of the respondent to be

arbitrary, discriminatory and malafide. Motives for the same are also attributed to an

officer of the respondent. It is the contention of the petitioner that the principle of "last

come first go" has to be followed in the matter of casual employment also and the

respondent which is a State within the meaning of Article 12 of the Constitution of India

cannot indulge in "hire and fire" in the matter of casual employment.

4. The respondent in its counter affidavit has controverted that the petitioner has

worked continuously as a daily wage peon from 9th September, 1999 to 9th October,

2000. It is their case that the petitioner worked from 9th September, 1999 to 24th

November, 1999 and from 30th November, 1999 to 25th January, 2000 i.e. for a period of

110 days; thereafter on the name of the petitioner being sponsored by the Employment

Exchange, he was again engaged as a daily wage peon on a casual basis and worked form

8th May, 2000 to 12th August, 2000 and from 4th September, 2000 to 9th October, 2000

(108 days) when his services were dispensed with on finding that the petitioner had

tampered with official records. It is further stated that there are no Rules & Regulations

governing the employment of casual workman and neither any appointment nor any

discharge letter had been issued to the petitioner.

5. The petitioner has filed a rejoinder controverting the averments in the counter

affidavit and reiterating his case in the petition. The respondent has filed sur rejoinder

thereof.

6. This writ petition was dismissed by this Court vide order dated 28th August, 2006

on the ground that the averments made in the petition raise an industrial dispute and

remedy of adjudication of the said dispute under provisions of Industrial Disputes Act

was available to the petitioner and the writ petition was not maintainable. It was also

observed that the disputed questions of fact could not be adjudicated in the writ remedy.

Review applied by the petitioner of the said order was also dismissed. The petitioner

preferred LPA No.2398/2006 to the Division Bench where it was the contention of the

counsel for the respondent that the respondent is not amenable to the jurisdiction of the

Labour Court. In view of the said statement, the Division Bench held that the alternative

remedy of raising an industrial dispute and on the basis whereof the writ petition had

been dismissed, being not available to the petitioner, the matter was remanded to this

Court for decision afresh.

7. The counsels have been heard.

8. The counsel for the petitioner besides reiterating the contents of the petition as

noticed above also handed over copy of an order dated 14th June, 2001 of the respondent

whereby certain daily wagers working with the respondent were given the status of

temporary employees. Per contra, the counsel for the respondent has contended that the

petitioner being admittedly a daily wage employee, the matter is fully covered by a

Division Bench judgment of this Court in Delhi State Industrial Development

Corporation Vs. J.K. Thakur 91 (2001) DLT 738 (DB) and Special Leave where against

being SLP Civil No.15425 of 2001 was dismissed on 17th September, 2001. Reference is

also made to Secretary, State of Karnataka Vs. Umadevi (2006) 4 SCC 1 to contend that

the petitioner by way of regularization cannot be permitted to make a back door entry. It

is further contended that even though the remedy of approaching the Labour Court is not

available to the petitioner but in view of the disputed vital facts as to the number of days

for which the petitioner has worked continuously, the petitioner has the civil remedy

available to him and the said disputed facts cannot be adjudicated in writ jurisdiction.

The respondent in its counter affidavit has also denied that the other persons who have

been given the temporary status had been engaged after the engagement of the petitioner.

It is pleaded that they were employed also on daily wage basis along with the petitioner.

9. I may notice that the petitioner in the rejoinder filed by him has also taken a plea

that the discharge of the petitioner as per averments in the counter affidavit being for the

reason of tampering of official records, the respondent ought to have held an inquiry, the

dismissal being stigmatic. Though the counsel for the petitioner did not cite but I find on

the file copies of the judgments in Samsher Singh Vs. State of Punjab AIR 1974 SC

2192 and Chandra Prakash Shahi Vs. State of U.P. JT 2000 (5) SC 181 on the said

aspect. The counsel for the petitioner also rejoins that the judgment in Umadevi (supra)

does not apply in as much as the petitioner is not seeking any regularization and is only

wanting this Court to hold his dismissal to be bad. He further contends that there is no

system of direct appointment of any peons in the respondent and that the petitioner still

remains unemployed and owing to being overage is not left capable of seeking

employment elsewhere.

10. The Division Bench of this Court in . J.K. Thakur (supra) had framed a question

as to whether a daily rated worker was entitled to any inquiry and hearing before

dismissal/discharge which could be traced to a bribery charge and because he had put in

seven years. It was held that a right of inquiry and hearing arises on holding a post and

such a right is not for asking by all and sundry and is conferred under the law and the

rules. It was further held that where an employee is not holding any post he was liable to

be sent out on terms of appointment/contract. It was thus held that a casual worker was

not entitled to a right of such inquiry. The Division Bench further held that a daily wager

cannot claim regularization as a matter of right or course because of having remained in

engagement for few years unless any rules/circular/policy of the Employer provide for

such deemed regularisation on completion of a specific period of engagement. In the

absence of such provision it was held that his services could be treated as regularised

only on passing of an appropriate order by the Competent Authority.

11. I do not consider it necessary to delve further on the question of whether the

petitioner was entitled to any inquiry and/or whether his discharge is bad for this reason.

Firstly, there is no foundation laid for the same. The same is not a ground taken in the

petition. Secondly, the discharge/dismissal of the petitioner was not amounting to placing

any stigma on him. It is only when the petitioner filed this petition on other grounds

before this Court challenging the policy of the respondent of "hire and fire", did the

respondent in the counter affidavit give the reasons for discharging the petitioner while

continuing with the others similarly placed as him. Such explanation before the court

which any authority, as the respondent is, is expected to give to explain its action cannot

constitute a stigmatic discharge requiring an inquiry. The intent and motive of the

respondent was not to discharge the petitioner for the reason of his having tampered with

the official record or to impute any such charge on the petitioner. The whole idea of

probation or of temporary employment is for the employer to gauge the character,

conduct, compatibility etc. of the employee. Upon being dissatisfied, the employer

without imputing any such charge on the employee is entitled to simply discharge him.

Merely because before the court an explanation is furnished and when again still no

charge is made against the petitioner, no such inquiry can be sought. The judgment in

Samsher Singh & Chandra Prakash Shahi (supra) are not found applicable. The

discharge of the petitioner is not traceable to any inquiry conducted behind the back of

the petitioner. The reasons stated are not result of any such inquiry behind the back of

petitioner but for a simplicitor discharge.

12. The facts averred by the petitioner of discrimination meted out to him are

disputed. Adjudication thereof cannot be in this jurisdiction. The remedy if any of the

petitioner of establishing such facts, if not before Labour Court as held by the Division

Bench, is before the Civil Court. Without the petitioner establishing the said facts the

petitioner is not entitled to the reliefs claimed in this writ even if he were to be entitled

thereto in law.

The petition therefore fails and is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 18th March, 2010 pp