Delhi High Court
Harish Kumar vs Union Of India on 13 February, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~79
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10304/2018
HARISH KUMAR .....Petitioner
Through: Mr. Lalit Kumar, Mr.
Pushpendra Kr. and Mr. Nitin Kumar, Advs.
with petitioner in person.
versus
UNION OF INDIA .....Respondent
Through: Mr. K.C. Dubey, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT (ORAL)
% 13.02.2025
C. HARI SHANKAR, J.
1. This petition challenges judgment dated 15 January 2018 passed
by the Central Administrative Tribunal1 in OA 3301/2016.
2. The petitioner was the applicant before the Tribunal in the said
OA.
3. The petitioner contended, before the Tribunal, that he had been
engaged by the respondent as Compiler/Data Entry Operator in
August 2009. However, after having worked with the respondent for
1 "the Tribunal", hereinafter
three years, he claimed to have been informed, in December 2012, that
he was on contract basis and that his services were being terminated.
4. Aggrieved thereby, the petitioner approached the Tribunal by
way of the aforesaid OA 3301/2016, with a prayer that the respondent
be directed to permit him to continue as Data Entry Operator.
5. In support of their contention, that he was directly employed by
the respondent, the petitioner produced
(i) cheques evidencing direct payment of salary by the
respondent to the petitioner,
(ii) certificate dated 16 October 2012 issued by the
respondent, certifying that the petitioner had been continuous
services with the respondent for three years, and
(iii) copies of the attendance register maintained by the
respondent, which recorded the attendance of the petitioner.
6. We may reproduce, for ready reference, the certificate dated 14
January 2016 issued by the respondent certifying that the petitioner
was in continuous service with them, thus:
"TO WHOM IT MAY CONCERN
It is certified that Shri Harish Kumar S/o Shri Phool Singh residing
at Mahubadabra Jaspur Distt. U.S. Nagar, Uttrakhand, is working
in Customs, Central Excise & Service Tax Past Noida as computer
Operator (Contract basis) for five year. The signature &
photograph of Shri Harish Kumar is attested as under."
7. Thus, before the Tribunal, all the evidence produced by the
petitioner was sought to be explained away as being in terms of the
contract between PMSSPL and the respondent.
8. The purported agreement between the respondent and PMSSPL
was, however, not forthcoming before the Tribunal.
9. The Tribunal has accepted the submissions of the respondent
and proceeded to dismiss the petitioner's OA, on the following basis:
"8. The applicants have not produced before this Tribunal any
tangible material showing that they were duly appointed to the post
of Compiler/Data Entry Operator by the respondent-Department in
August 2009 and were working as Compilers/Data Entry Operators
in the respondent-Department. No material has also been placed
before this Tribunal to show that the applicants were engaged by
the respondent Department to work on contract basis with
consolidated salary and their services were terminated by the
respondent-Department. From the documents filed by the
applicants, along with their O.A., it is clear that the respondent-
Department had outsourced the work of data entry work, and the
applicants were engaged by M/s Park Management Support
Services Pvt. Ltd. to do the data entry work in the office of
respondent no.3. Specific amount of expenditure was sanctioned by
the respondent-Department for such data entry work and paid from
the head "Office Expenses". Thus, the applicants were disengaged
by the said service provider in accordance with the terms and
conditions of their engagement. Therefore, I do not find any
substance in the claim made by the applicants in the present O.A."
10. Aggrieved by the aforesaid decision, the petitioner approached
this Court by means of the present writ petition.
11. While issuing notice in this matter, this Court on 28 September
2018, passed the following order:
"1. Issue notice.
2. Although the pleadings before the Tribunal are already on
record, it is considered necessary to direct the respondent to file an
affidavit to explain the reason for issuing cheques through the Pay
and Accounts Office, Customs Central Excise and Service Tax
Department, Noida, in favour of the petitioner towards his wages
and for issuing a certificate dated 16.10.2012, declaring inter alia
that the petitioner is working in the Customs, Central Excise and
Service Tax Department, Noida, as a Computer Operator,
(contract basis) for five years. Further, the respondent shall place
on record, the contract executed with the private agency that had
employed the petitioner who was working as a Data Compiler in
their Noida branch.
3. List on 15.02.2019."
(Emphasis supplied)
12. In terms of the aforesaid order, an additional affidavit was filed
by the respondent, which read thus:
"AFFIDAVIT
I, Nisha Lal W/o Late Shri Ratan Lal, R/o Flat No. 1231, Sharon
Tower, Gaur Saundaryam, Greater Noida (West) aged about 58
years, do hereby solemnly affirm and declare as under:-
1. That I am working as Assistant Commissioner with the
Respondent in the aforementioned case and well conversant with
the facts and circumstances of the case and competed to swear this
affidavit.
2. That the Petitioner has never been an employee of the
Respondent nor has been paid any remuneration by the
Respondent. The Respondent has not issued any cheque to the
Petitioner nor has he ever been paid in cash.
3. That the said certificate dated 14.01.2016 declaring inter-
alia that the Petitioner was working with the respondent cannot be
treated as an authority which appoints him as an employee of the
Department.
4. That the Petitioner's services were utilized through the
service provider namely M/s Park Management Support Services
Pvt. Ltd., S-9, Sector-12, Noida-201301 to meet out some works
which were of urgent and temporary nature when such work was
over his services were no more required.
5. That as per the direction the Respondent has looked over all
records but as the matter being very old, a copy of contract
executed with M/s Park Management Support Services Pvt. Ltd. is
not traceable. Instead, a bill for the month of March, 2012 dated
31.03.2012 has been found by which M/s PMSS Pvt. Ltd was paid
an amount of Rs. 15,645/- for providing two Data Entry Operator
to the Respondent which proves that Shri Harish Kumar is not an
employee of this department and he was outsourced through M/s
Park Management Support Services Pvt. Ltd. A copy of the said
bill dated 31.03.2012 is placed on record and marked as
Annexure-R-A.
6. That the contents of the affidavit have been read over and
explained to me and the same are true and correct to the best of my
knowledge and belief.
7. That the Annexure attached with the affidavit are true copy
of the original and the same are true and correct.
DEPONENT"
(Emphasis supplied)
13. The respondents had three opportunities to explain the material
on which the petitioner relied, as enumerated supra; in its counter-
affidavit before the Tribunal, thereafter during oral arguments before
the Tribunal and, thereafter, before this Court. It would be interesting
to note the stand taken by the respondents on each occasion:
Regarding Stand of the respondent
In counter- During oral In additional
affidavit before arguments before affidavit filed
the Tribunal the Tribunal before this Court
Cheques issued "No such cheque "As per the terms "The Respondent
by respondent in has been issued by and conditions of has not issued any
petitioner's name the respondent no. the agreement cheque to the
3 in favour of entered into by Petitioner nor has
applicant nor any and between the he ever been paid
payment in cash respondent- in cash."
has been made." Department and
the service
provider, the
payment of wages
made by the
respondent-
Department
directly to the
applicants does
not imply that the
applicants were
the employees of
the respondent-
Department."
Attendance "No such "... since the (No submission)
register attendance register service provider
is maintained in engaged the
the office of the applicants to do
respondent no. 3." the data entry
work in the office
of respondent no.
3, the maintenance
of Attendance
Register was
required by the
service provider
for the purpose of
making wages to
the applicants, and
such maintenance
of Attendance
Register does not
clothe the
applicants with a
right to claim that
they were
employees of the
respondent-
Department."
Certificates "Wrong and (No submission) "The said
denied. As such certificate dated
certificates cannot 14.01.2016
be treated as an declaring inter
authority which alia that the
appoints him as an Petitioner was
employee of the working with the
respondents." respondent cannot
be treated as an
authority which
appoints him as an
employee of the
Department."
14. Thus, the position that emerges is as under, with respect to the
material on which the petitioner relied, to substantiate his stand that he
was the respondent's employee:
(i) Re. payment of salary by cheques issued by the
respondents
(a) In their counter-affidavit before the Tribunal, as
also in the additional affidavit before this Court, the
respondents sought to completely disown the cheques
issued to the petitioner as never having been issued by
them.
(b) In a starkly contradictory, and incompatible,
manner, the respondents argued, before the Tribunal, that
the payments had been made, but as per the contract
between the respondents and PMSSPL.
(c) We deem it appropriate to provide, here, a screen
shot of one such cheque issued to the petitioner, the
genuineness of which was never questioned by the
respondents:
(ii) Re. attendance register
(a) Despite having been given an opportunity by this
Court, vide its order dated 28 September 2018, to explain
the maintenance of an attendance register for the
petitioner if he was not the respondent's employee, the
additional affidavit filed by the respondent is totally
silent on this aspect.
(b) Before the Tribunal, the stand adopted during oral
arguments was completely at variance to the stand taken
in the counter-affidavit. In the counter-affidavit, the
respondent completely denied maintaining any
attendance register for the petitioner. Before the Court,
however, the respondent contended that the maintenance
of the attendance register was in terms of the agreement
between the respondent and PMSSPL.
(c) That agreement, as already noted, has never been
produced or filed.
(iii) Re. certificate
(a) Again, apropos the certificate issued by the
respondent, while the respondent chose to remain silent
during oral arguments before the Tribunal, in the counter-
affidavit filed in response to the respondent's OA, it was
sought to be contended that the certificate could not be
cited as proof that the petitioner was the respondent's
employee. This stand has been reiterated in the additional
affidavit filed in compliance with the order dated 28
September 2018 passed by this Court.
(b) Mr Dubey, learned Counsel for the respondent
submits, before us, however, that the certificate was
issued so as to aid the petitioner in obtaining alternate
employment.
(c) No such contention was even advanced before the
Tribunal.
15. The position that emerges is that, while the petitioner had
placed material, on record, indicating that he was the respondent's
employee, the respondent, while asserting, per contra, that the
petitioner was the employee of PMSSPL, could not place tangible
material on record to substantiate the plea.
16. The Tribunal, in our view, has erred in holding otherwise.
17. In that view of the matter, we cannot sustain the impugned
judgment of the Tribunal, which is accordingly quashed and set aside.
18. The OA filed by the petitioner shall stand allowed in terms of
the prayers made therein.
19. The writ petition is allowed accordingly.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
FEBRUARY 13, 2025/aky
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