S.K.Tripathi vs Secretary Agricultural Produce ...
2017 Latest Caselaw 1205 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.5515/1998

%                                                     6th March, 2017

S.K.TRIPATHI                                              ..... Petitioner
                          Through:       None.
                          versus

SECRETARY AGRICULTURAL PRODUCE MARKET
COMMITTEE & ORS.                         ..... Respondents
                 Through: Ms. Latika Chaudhary, Adv. For
                          R-1.
                          Ms. Jyoti Taneja, Adv. For R-3.

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 under Article 226 of the Constitution

of India, the petitioner has sought the relief of regularization of

services with the respondent no.1.


2.           This writ petition was earlier dismissed by a judgment

dated 22.7.2013, and a review petition was also dismissed vide order

dated 13.11.2013, however, this matter has been remanded by a

Division Bench of this Court vide order dated 15.7.2015 in LPA No.

104/2014 by observing as under:-



W.P.(C) No.5515/1998                                          Page 1 of 6
      "2.       Vide the impugned order dated July 22, 2013 the learned Single
     Judge dismissed the writ petition, that is, W.P.(C) No.5515/1998 following
     the decision reported as 2006 (4) SCC 44 Secretary, State of Karnataka and
     Ors.vs.Umadevi and Ors. The learned Single Judge held the issue before him
     was not of taking bribe but whether the regularisation of contractual
     employee could be directed and that in the writ petition there was no
     averment of the existing sanction post, vacancies in the sanctioned post and
     whether the recruitment was through the regular recruitment process. Since
     S.K.Tripathi was only a daily wager he cannot be regularised in terms of the
     ratio of Umadevi (supra). The learned Single Judge in the impugned order
     dated July 22, 2013 did not advert to the main contention in the writ petition
     that a petition was filed in the Supreme Court in 1996 by the Union namely
     Daily Wagers Union and others vs. Delhi Administration and others wherein
     the Supreme Court vide its order dated August 30, 1988 had directed the
     Respondents to consider the case of 132 workers including S.K.Tripathi for
     regularisation and that their services will not be terminated until their cases
     for regularisation were considered. It would relevant to note the decision of
     the Supreme Court which is reproduced as under:
                    "IN THE SUPREME COURT OF INDIA
                    CIVIL ORIGINAL JURISDICTION
                    WRIT PETITION NO.649 OF 1986
        Daily Wagers Union & Ors.                ...Petitioners
                              Versus
        Versus Delhi Admn.& Ors.                            ...Respondents

                                          ORDER

The petitioners in this petition are the daily wage workers working for the Delhi Agricultural Produce Marketing Committee. Their trade Union is also a petitioner in this petition. The principal prayer of the petitioners in the petition is that their services should be regularised and that they should be appointed on substantive basis since they have been rendering the services as casual labourers for nearly six to seven years. The members of the trade Union were 591 in the year 1986, when this petition was filed.

Shri Tapas Ray, learned counsel for Delhi Agricultural Marketing Produce Committee submits that after this petition was filed the services of 568 daily wage earners working under the Committee belonging to different categories have already been regularised against substantive vacancies and that there are only 132 daily wage earners whose services have still to be regularised. He further submits that steps will be taken as early as possible by the Committee to regularise the services of these remaining 132 workers also depending on the availability of the vacancies and that unless and until the cases of these 132 workers are considered for regularisation the Committee will not submit any outsider in the place of any of them. He further submits that the services of these 132 persons will not also be terminated until their cases for regularisation are considered. We feel that the submission made by Shri Tapas Ray,

learned counsel for the Committee meets the requirements of this petition. We direct the Committee to comply with the submission made on its behalf by Shri Ray as early as possible. The Writ Petition is disposed of accordingly. No cost.

Sd/-

..............J.

(S.S.Venkataraiah)

Sd/-

..............J.

(N.D.Ojha) New Delhi August 30, 1988"

3. In the counter affidavit to the writ petition the Respondents admitted that directions were passed by the Supreme Court however, it was stated that out of 132 daily wager, services of 104 were regularised according to their seniority and the remaining daily wagers' cases were under consideration for regularisation of their services. However, as far as S.K.Tripathi was concerned he was not regularised as he had been disengaged in view of the fact that he was found indulging in illegal activities of extorting extra money from truck drivers/owners while giving them gate passes in a surprise raid conducted on June 19, 1997. The counter affidavit is totally silent that how the seniority and the vacancy position were calculated pursuant to the order of the Supreme Court dated August 30, 1988.

4. In view of the fact that the learned Single Judge did not take note of the Supreme Court judgment S.K.Tripathi filed a review petition again reiterating the decision of the Supreme Court directing that the services of these 132 persons will not be terminated until their cases for regularisation were considered.

5. The learned Single Judge vide the impugned order dated November 13, 2013 again failed to notice this aspect and held that after passing of the judgment in the case of Umadevi (supra) no person who is a temporary employee or a casual employee or a daily wager can be regularised failing to note that a direction of the Supreme Court was already passed in favour of the Appellant. In the impugned order dated November 13, 2013 again there was no reference to the judgment of the Supreme Court dated August 30, 1988.

6. Considering the fact that vide the two impugned orders the learned Single Judge failed to note the material contention of S.K.Tripathi that directions to consider his case for regularisation and not to terminate the services till then has not been considered by the learned Single Judge, the same are accordingly set aside. The writ petition be thus listed before the learned Single Judge as per the Roster Bench on August 03, 2015.

7. Appeal is disposed of."

3. Learned counsel for the respondent no.1 argues that

petitioner was in fact not considered for regularization and that his

services were terminated by order dated 27.10.1998, inasmuch as,

petitioner was found guilty of taking bribe of Rs.2/- from each of the

truck drivers with respect to gate passes being issued. The impugned

order dated 27.10.1998 reads as under:-

"AGRICULTURAL PRODUCE MARKET COMMITTEE D-4, PANCHWATI: AZADPUR:DELHI-110033 No. F201/APMC/VIG/98/661 Dated: 27.10.98 ORDER WHEREAS a surprise raid was conducted by the officers of APMC Azadpur on 19.6.97 in MSM Azadpur from 7.00 PM to 9.00 P.m. AND WHEREAS Sh.S.K.Tripathi, S.I.(DW) was performing the duty at NSM Gate during the checking hours.

AND WHEREAS Sh. S.K.Tripathi, S.I.(DW) while issuing the gate pass of loaded truck No.DL-16, A-8777 had charged Rs.10/- instead of Rs.8/-. The driver of the truck had indentified Sh. S.K.Tripathi before the inspecting team.

AND WHEREAS a Show Cause Notice dt. 24.3.98 issued to Sh. S.K./driver extra amount from the/truck No.DL-1G,A-8777. AND WHEREAS Sh. S.K.Tripathi, S.I.(DW) submitted his reply dt. 30.3.98 stating that no raid was conducted by the officers of APMC Azadpur on 19.6.97.

AND WHEREAS the reply of Sh. S.K.Tripathi, S.I.(DW) was examined and found that the reply submitted by Sh. Tripathi is not correct. He is denying the factum of raid itself whereas the fact is that the raid was conducted by the team and reports with documentary evidence were submitted. In the paid irregularities against another Daily Wager in accening bribe were also detected. The notices has also been issued to shift incharge was found absent from his duty.

AND WHEREAS after perusal of all relevant reports/records in the matter, the reply of Sh. S.K.Tripathi, S.I.(DW) dated 30.3.98 is totally unsatisfactory and false to his knowledge. He is not a fit person to continue on daily wages. In view of above, I hereby disengage the sevices of Sh. S.K.Tripathi, S.I.(DW) with immediate effect.

Sd/-

(V.P.RAO) 23.10.98 ADMINISTRATOR SH. S.K. TRIPATHI, S.I. (D.W.) APMC AZADPUR DELHI

Copy to:-

1. Joint Secretary, APMC Azadpur

2. Dy. Secretary (Administration), APMC Azadpur

3. Accounts Officer, APMC Azadpur

4. Dy. Secretary (Legal & Prosecution) APMC Azadpur

5. P.S. to Secretary, DAMB for kind information."

4. Learned counsel for the respondent no.1 has drawn the

attention of this Court to para 4 of the counter-affidavit filed stating

that petitioner had not been regularized on account of petitioner being

guilty in taking bribe. Para 4 of the counter-affidavit reads as under:-

"That a surprise raid was conducted by the Deputy Secretaries of Agricultural Produce Market Committee, Azadpur, on 19.6.1997 in the Principal Market Yard of the Market Committee when it was found that the petitioner had been accepting an extra amount of Rs.2/- from the truck drivers loaded with lemon while issuing gate pass. The Driver, Laxman Singh, indentified the petitioner before the raiding team. Though there was no requirement in law to issue any show-cause notice, to the casual labourer who was not being engaged, in the facts and circumstances of the case a show-cause notice was issued to him on 23.3.1998 as to why he should not be disengaged from the Market Committee. In reply the petitioner simply denied that any raid was conducted, which position was factually incorrect as in that raid action was taken against another daily wager for accepting bribe and the shift in-charge, who was found absent from duty. Petitioner's reply being found unsatisfactory and false, it was decided by the Disciplinary Authority that the petitioner was not a fit person to continue on daily wages and, as such, he was disengaged with immediate effect."

5. In law, petitioner would have been entitled for

regularization if petitioner had an unblemished record. There is no

entitlement in law to be considered for regularization even if petitioner

has been removed after issuing him a show cause notice alleging

petitioner to be guilty of taking bribe. The back ground with respect to

passing of the impugned order dated 27.10.1998 is stated in para 4 of

the counter-affidavit which has been reproduced above.

6. In view of the above discussion, since petitioner was

found guilty of taking bribe, the principles of natural justice being not

in a straight jacket formula, petitioner hence cannot seek regularization

in services. The impugned order dated 27.10.1998 thus cannot be set

aside and petitioner be granted regularization in services. Since

petitioner was not a regular employee therefore there was no need for

respondent no.1 to hold formal departmental proceedings including

appointing an enquiry officer and in the facts of the present case there

was sufficient compliance of principles of natural justice as petitioner

was issued a show cause notice and his reply was duly considered and

petitioner's stand was rejected for passing the impugned order

terminating his services.

7. In view of the above, there is no merit in the writ petition

and the same is accordingly dismissed.

MARCH 06, 2017                               VALMIKI J. MEHTA, J
ib