Jharkhand High Court

Ram Prabesh Singh vs Bihar State Road Transport ... on 15 March, 2021

                                         1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No. 3890 of 2009
     1.Ram Prabesh Singh
     2.Santara Devi.                             ..... Petitioners
                            Versus
     1. Bihar State Road Transport Corporation, through
        Chairman-cum-Managing Director, Paribhan Bhawan,
        Birchand Patel, Patna-1.
     2. Jharkhand Road Transport Corporation, through
        Transport Secretary, Ranchi.
     3. Divisional Superintendent, B.S.R.T.C., Ranchi.
                                      .....  Respondents
                                 ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

For the Petitioner : Ms.M.M.Pal, Sr. Advocate For the Resp. No.1 : Mr. Pankaj Kumar, Advocate For the Resp. No.2 : Ms. Shivani Kapoor, A.C. to S.C.-II

---------

10/Dated: 15th March, 2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioners for following reliefs:-

"a. The respondents be directed to give effect to the order dated 03.02.1989 so far this petitioners are concerned and to extend all the Benefits of regularization at par with the same and similarly situated persons for which he is legally entitled to.

b. The respondents be directed to pay the petitioners regular salary and all service benefits inpersuance to the order of regularization dated 03.02.1989.

c. The respondents be directed not to discriminate the petitioners and to extend all the service benefits for regularization to these petitioners without any further delay. d. The respondents be directed to pay the arrears of salary for the period from 14.05.1986 to 10.03.2008 i.e. from the date of put off to the date of joining for which he was put off in connection with the criminal case but subsequently were acquitted from the Criminal charge.

e. The respondents be directed to treat the petitioners as regularized on and from 03.02.1989 i.e. the date when their

juniors were regularized and give all consequential benefits thereon.

f. Any other relief or reliefs for which these petitioners are entitled to.

3. Ms. M.M.Pal, learned senior counsel for the petitioner

submits that while the petitioners were posted as

Conductors, a criminal case was lodged against them on

20.02.1986 under Sections 452, 448, 384, 506 and 511

I.P.C. for which both the petitioners were sent up for trial

and they were put off from duty vide order dated

14.04.1986 issued by the Chairman- cum- Managing

Director of the respondent-Board. Lastly vide judgment

dated 27.05.1988 both the petitioners were acquitted.

4. The grievance of the petitioners is that after their

acquittal; both made representations in the year, 1988 and

requested the authorities to allow them to join their duties.

However, they were restrained from joining their duties in

spite of the fact that a list of casual workers were prepared

by the BSRTC and altogether 377 workers were considered

for regularization in which the name of these petitioners

were at serial no. 342 and 343.

5. Ms. Pal further draws attention of this Court towards

Annexure-4 and submits that after more than 25 years the

joining of the petitioners has been accepted and they have

been posted at Daltonganj Depot. In the said letter dated

10.03.2008 (Annexure-4) issued by the Headquarter, the

joining of the petitioners were accepted on conditions:-

(a) In absence of regular conductor, on the basis of

requirement, they will provide work and on that basis

they will be paid wages.

(b) They will be paid wages in the previous rate and

all the orders issued before the date of put off are

deemed to be cancelled.

The petitioners thereafter performed their duties,

however they were not regularized.

6. Ms. Pal concluded her argument and submits that

even though the petitioners were appointed and were

considered for regularization pursuant to Memo No. 299

dated 03.02.1989 and their names were at serial nos. 342

and 343, the respondents never took work from them and it

is only on 10.03.2008 their joining were accepted. Though

the petitioner represented several times, but their claim for

back wages from the date of regularization i.e. 03.02.1989

till the date of joining i.e. 10.03.2008 were never paid to

them

7. Mr. Pankaj Kumar, learned counsel for the

respondent no.1 (BSRTC) submits that the issue of

regularization has already been settled by the Hon'ble Apex

Court and referred to the judgment passed in C.W.J.C No.

12926 of 2009 and submits that the petitioner should have

filed application before the Labour Commissioner as they

were having an alternative remedy. Replying to this

contention of learned counsel for BSRTC, Ms. Pal

contended that this judgment cannot be applied with the

case of the petitioner as this order has been passed in the

case of a Union and not for any individual.

8. Ms. Shivani Kapoor learned counsel for the

respondent-JSRTC submits that the petitioner no.1 had

earlier moved before this Court in C.W.J.C. No. 1722 of

1996 (R) which was dismissed without any interference. As

such no relief can be granted to the petitioner no.1.

However, she fairly submits that if the petitioner no.2 will

represent to the respondent-Board showing equality with

other people amongst the list of 377 casual workers his

case can be considered after due verification.

9. Having heard learned counsel for the parties and

after going through the documents annexed and averments

made in the respective affidavits, it appears that the

petitioner no.1 had earlier moved before this Court in

CWJC No. 1722 of 1996 (R) which was preferred for a

direction upon the respondent to accept the joining and pay

back wages and not to give effect to the order dated

14.04.1986, which is same and similar fact which has been

prayed in the instant application.

10. After going through the aforesaid order, it appears

that Annexure-3 of this case i.e. order dated 03.02.1989

(list of casual worker for regularization) was Annexure-5 in

that case and this Court after verifying the original records

came to conclusion that though the name of the petitioner

was mentioned at serial no. 342; however against his name

a endorsement was made that matter was pending before

the head office. For proper appreciation and to decide the

issue involved in this case relevant portion of the order of

this court passed in the case of Petitioner no.1 in C.W.J.C.

No. 1722 of 1996 (R) is quoted herein below:-

"Having considered the submissions made by learned counsel for the parties an after going through the material available on record and also original record produced by learned counsel for the respondents it is manifest that the petitioner was engaged on daily wages in the year 1980. He was restrained from discharging his duty with effect from 14.04.1986, Annexure-1. He was made accused in criminal case for assaulting and mis-behaving with the senior officer.

In the criminal case the petitioner has been acquitted but he was not permitted to join again. It appears from Annexure-3 to rejoinder to the counter-affidavit that the service of the petitioner was regularized but it appears from the original record produced by learned counsel for the respondents that relevant portion of the Annexure-5 was not annexed with the rejoinder to the counter-affidavit. It appears from the original of Annexure-5 that name of the petitioner is mentioned at serial no. 342 and against his name endorsement has been made that matter is pending before the Head Office. It further appears that complete one page has not been annexed with Annexure-5. From perusal of the said page of original of

Annexure-5 it appears that the officer concerned was directed that before issue of order he must verify the break in service, reappointment, suspension, stopping from duty, absence for long time, departmental proceeding, etc. and furnish certificate to the aforesaid effect. If the officer concerned furnishes the certificate without verifying the aforesaid fact he shall be responsible for the said laches. It was also mentioned that due to aforesaid reason if it is found that there is break in employment and any other relevant material service of such conductor or employee shall not be regularized. Learned counsel for the respondents pointed out on consideration of the aforesaid facts the office order with regard to regularization of service of the petitioner has not been issued and hence claim of the petitioner cannot be allowed in such circumstances. It is true that the Supreme Court had directed to frame a scheme for regularization of the daily wage employee if they were working for sufficient long time but in the facts and circumstances of the case, as discussed above in my view the petitioner is guilty of suppressing the relevant facts as the relevant portion of Annexure-5 as it appears from the original record, was not attached with the rejoinder to the counter-affidavit. Besides the case of the petitioner was also considered and the respondents have come to a conclusion, in the facts and circumstances of the case and in view of specific direction for regularization which is manifest from the original of Annexure-5, that the petitioner is not entitled for regularization of service as indicated above.

Thus on consideration of the entire facts and circumstances of the case, I do not find merit in this application. It is, accordingly, dismissed."

Emphasis Supplied

11. After going through the aforesaid order, it appears

that the claim of the petitioner no.1 was rejected and this

Court has categorically held after verifying the original

records of case including the order dated 03.02.1989 (list of

casual worker for regularization) that the petitioner is not

entitled for regularization of service and dismissed the writ

application. It has been informed that the said order has

attained finality. As such, no relief can be granted to the

petitioner no.1.

12. So far as petitioner no.2 is concerned; in view of the