Ashok Kumar vs Airport Authority Of India & Ors.
2013 Latest Caselaw 4371 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 5810/1998

%                                              24th September, 2013

ASHOK KUMAR                                                ......Petitioner
                          Through:       Mr. Rishikesh, Advocate.


                          VERSUS

AIRPORT AUTHORITY OF INDIA & ORS.          ...... Respondents

Through: Ms. Ratna Dwivedi Dhingra and Ms. Bhawna Dhami, Advocates for R-1.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the petitioner Sh. Ashok Kumar seeks direction

of quashing of the impugned order dated 3.8.1998 issued by the respondent

no.1-Airport Authority of India discontinuing the services of the petitioner

with immediate effect. Petitioner claims that petitioner was working with

respondent no.1 through an independent contractor for many years and

pursuant to the judgment of the Supreme Court in the case of Air India

Statutory Corporation, etc. Vs. United Labour Union and Ors. AIR 1997

Supreme Court 645 petitioner should have been absorbed and regularized

by respondent no.1.

2. The case of the petitioner is that though he was employed with the

contractor as sweeper/cleaner, he was working for the respondent no.1 and

since the Supreme Court in the case of Air India Statutory

Corporation(supra) upheld the judgment of the Bombay High Court by

issuing directions for regularization and absorption by respondent no.1,

petitioner was bound to be regularized instead of respondent no.1 illegally

discontinuing his services in terms of the impugned order dated 3.8.1998. It

is argued before me on behalf of the petitioner that house keeping records

which are relied upon by the respondent no.1 are not only violative of

principles of natural justice but also they are cursory and lacking in

substance. Petitioner has been wrongly denied the benefit of regularization

though petitioner was in fact working in the offices of respondent no.1.

3. On behalf of respondent no.1, it is stated that no doubt persons who

were employed with contractors and working with the respondent no.1 had

to be regularized however, petitioner in this case was actually not working

with the respondent no.1 as on the date of passing of the judgments of the

Supreme Court on 6.11.1996 and 6.12.1996. It is contended that petitioner

could not be recognized by the house keeping staff and respondent no.1 was

not bound to regularize the petitioner who was not found to be working with

it. The factual position in this regard is stated by the respondent no.1 in the

following words of the counter-affidavit.

"(a) The petitioner had been engaged by ex-contractor M/s Sri Ram Yadav at Terminal II, IGI Airport and not by the Answering Respondents. The Answering Respondent had only taken him under its care with effect from 1.2.1997, pending detail scrutiny.

(b) The services of the petitioner were dispensed with vide letter dated 3.8.98 on account of the following discrepancies.

(i) The petitioner could not be identified by the house keeping supervisor committee on the first stage as is evident from the report of the house keeping supervisors committee which is annexed herewith as Annexure „A‟.

(ii) The petitioner could not be identified by the house keeping supervisor committee even in the second stage the petitioner was not identified by the house keeping supervisor committee two times even though he was interviewed personally. The copy of the House Keeping Supervisors committee is annexed herewith as Annexure „B‟.

(iii) The pay bills for November, 1996 and December, 1996 has been signed by petitioner in English whereas the affidavit /declaration has been signed by the petitioner in Hindi. The two signatures are entirely different. The pay bills for November, 1996 and December, 1996 and the affidavit/declaration are annexed hereto as Annexure-C (Colly)

It was on account of these discrepancies that the services of the petitioner were discontinued. It is submitted that the petitioner has been engaged by M/s. Sri Ram Yadav and not by the

Answering Respondent. It is also submitted that on the basis of the judgment of the Hon‟ble Supreme court dated 6.12.96, all ex-contract workers had been taken under care of Answering Respondent w.e.f 1.2.97 subject to detailed scrutiny, to ascertain the authenticity of genuine workers who were covered by the judgment of the Hon‟ble Supreme Court for regularization.

In view of the above stated discrepancies, this Hon‟ble Court not being a fact finding authority cannot entertain the present writ petition."

4. At the outset I would like to state that I would have preferred not to

decide disputed questions of facts in this petition under Article 226 of the

Constitution of India. Disputed question of fact arises because whereas the

petitioner states that he was working with respondent no.1 as on the date of

passing of the judgment of the Supreme Court and in fact for 10 years prior

thereto, respondent no.1 disputes the same and accordingly unless evidence

was led this issue could not have been decided. On putting a query to the

counsel for the petitioner that as to whether petitioner would like to

withdraw this petition and file a civil suit in the civil court, however, counsel

for the petitioner states that petitioner has no right to approach the Industrial

Tribunal or any court in terms of the judgment in the case of Air India

Statutory Corporation(supra) and therefore this petition be decided by this

Court.

5. The main issue is whether the petitioner was working in the offices of

respondent no.1, although, petitioner was appointed formally by the

independent contractor as sweeper/cleaner. In my opinion, the case of the

petitioner is misconceived and no relief can be granted for the reasons given

hereinafter.

6. Firstly, if the petitioner was working for as many as 10 years in the

offices of respondent no.1, then surely for 10 years prior to 1997, petitioner

would have with him some sort of identity card(s) issued to him for different

periods showing that he was working with the respondent no.1, however the

petitioner has filed only one identity card stated as expiring in December,

1998. Therefore, nothing has been placed on record that petitioner was

working with the independent contractor, and much less in the offices of the

respondent no.1, for a period of 10 years as claimed by him. Secondly, even

as per the writ petition, petitioner states that w.e.f 2.2.1997 pending formal

regularization of his services, petitioner has been working as

sweeper/cleaner with the respondent no.1. This date of 2.2.1997 is

important because the dates of the judgments of the Supreme Court are

6.11.1996 and 6.12.1996. Petitioner should have been working through the

independent contractor with the respondent No.1 as on the date of passing of

the judgments of the Supreme Court, however, except a self serving affidavit

nothing has been placed on record to show that petitioner through

independent contractor was working in the offices of the respondent no.1 as

on the date and continuously prior to passing of the judgments by the

Supreme Court in the case of Air India Statutory Corporation(supra) .

Only those employees who were actually working with the respondent no.1

as on the date of passing of the judgments by the Supreme Court in the case

of Air India Statutory Corporation(supra) were entitled to be regularized

and therefore those persons who were not working with the respondent no.1

on the date of passing of the judgments of the Supreme Court in the case of

Air India Statutory Corporation(supra), such persons were not to be

regularized. Petitioner has failed to file any documents to show that he was

working in the offices of the respondent no.1 on the relevant dates and for

continuous periods before the said dates. Therefore, respondent no.1 was not

unjustified in discontinuing the services of the petitioner in terms of the

impugned order dated 3.8.1998.

7. Counsel for the petitioner sought to argue that principles of natural

justice have been violated and therefore, the impugned order is bound to be

set aside, however, I do not find any force in this contention once it was

found that petitioner never worked in the offices of the respondent no.1 after

being employed with the independent contractor. Principles of natural justice

cannot come to aid of the petitioner in a case such as the present and more so

because this Court has also looked into the merits of the case put forth by the

petitioner, and which is found to be without merits. Obviously, the

petitioner at the very best may have been working with the independent

contractor, but definitely not in the offices of the respondent no.1, and the

respondent no.1 was bound to regularize and absorb only those persons who

were working in the offices of the respondent no.1. Principles of natural

justice does not mandate personal hearing in all situations. I do not find any

illegality or malafides in the action of the respondent no.1 in passing the

impugned order discontinuing the services of the petitioner inasmuch as,

petitioner had failed to show that petitioner was working in the offices of the

respondent no.1 (although employed by the independent contractor) as on

the date of passing of the judgments of the Supreme Court in the case of Air

India Statutory Corporation(supra).

8. In view of the above, the writ petition is dismissed, leaving parties to

bear their own costs.

SEPTEMBER 24, 2013                               VALMIKI J. MEHTA, J.
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