Uttarakhand High Court
(S/S) Amar Deep vs Executive Officer Nagar on 30 July, 2021
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
WPSS No.831 of 2021
Hon'ble Sharad Kumar Sharma, J.
(Via Video Conferencing)
Mr. Desh Raj Singh, Advocate for the
petitioner.
Mr. P.S. Bisht, Addl. C.S.C. for the State of
Uttarakhand.
As per the pleadings, which had been raised
by the petitioner in the present writ petition, few
facts, which are admitted are:-
i That he was an out source employee, which
was supplied by the agency of respondent no.4, for
rendering the services as a Lineman with
respondent nos.2 and 3. As a consequence of his
alleged appointment, as an out source employee, he
was deputed to perform his duty as Lineman, in
order to meet out the complaint made on
23.02.2011.
It is contended by the petitioner while he was
discharging his duties as a Lineman; though on a
contractual basis as an outsourced employee, an
accident chanced due to which he was partially
disabled.
He submitted that subsequent to the recovery
from the ailment, he had been stopped and removed
from services with effect from 06.12.2018.
Subsequent thereto, the petitioner has preferred a
writ petition being Writ Petition No.1768 of 2020
(S/S) Amar Deep vs. Executive Officer Nagar
Palika Parishad, Khatima, in which he has prayed
for the following relief:-
"(i) issue a writ, order or direction in
the nature of mandamus, commanding
/directing the respondent department to
allot any other work in the respondent
department and also give the
compensation, as the petitioner has met
an accident, while working in the
respondent department for connecting
the domestic cable, in which the left
hand of the petitioner has been
completely ruined. (ii) issue a writ,
order or direction in the nature of
mandamus, commanding/directing the
respondent no. 3 to decide the pending
representations dated 10.07.20202 &
respectively)."
In fact, if the relief clause of the above writ
petition is taken into consideration, the writ
petition, which was preferred being Writ Petition
No.1768 of 2020 (S/S) Amar Deep vs. Executive
Officer Nagar Palika Parishad, Khatima, was
subsequent to the alleged act of the respondents of
his removal from services on 06.12.2018; but the
petitioner has not given a challenge to the said
action of removal in the above writ petition, while
preferring the earlier writ petition, preferred by him
before this Court for the reliefs referred above.
In these circumstances, under the principles
of Order 2 Rule 2 of C.P.C., and applicable once
the petitioner while preferring the writ petition in
2020 or earlier; he has not given a challenge to the
earlier order of removal dated 06.12.2018, he
cannot at this stage be permitted, by filing a
subsequent writ petition qualify the relief, which he
has waived off himself by his voluntary act, by not
seeking the same while filing the earlier writ
petition. Hence, the relief of removal, which has
been sought to be agitated now, cannot be pressed
as of now, under the principles of waiver, as
envisaged by Order 2 Rule 2 of C.PC.
Secondly, this logic of the petitioner that he
happens to be an employee of the Corporation and
hence, the respondents would be liable to allot him
the work, as prayed for in the writ petition, is not
sustainable; for the reason being that according to
his own pleading, it is not that the petitioner was
recruited with respondent nos.2 & 3, after resorting
to the process of selection or after undergoing the
selection process, but rather he was supplied as a
man power from an out sourcing agency i.e. of
respondent no.4 and hence, if at all, there was any
lien left with the petitioner, it could be qua the
respondent no.4 only, and not qua respondent nos.2
& 3, as there did not existed any master and servant
relationship between the petitioner and respondent
nos.2 and 3.
However, the Coordinate Bench of this Court
by the judgment dated 16.12.2020; had disposed of
the writ petition directing the Chief Engineer, to
consider the representation of the petitioner and the
said representation has been considered, which has
been rejected by the impugned order of 12.03.2021
(Annexure 9 to the writ petition) and if the findings,
which has been recorded in para 3 and 4 of the
impugned order is taken into consideration, which
is extracted hereunder:-
^^3- fo|qr forj.k mi[k.M] jk;lh ds dk;kZy; esa
miyC/k fofHkUu vfHkys[kh; lk{;ksa ls ;g izekf.kr gksrk
gS fd vkids fo:) fo|qr pksjh djokus] vukf/kd`r :i
ls miHkksDrkvksa [email protected] esa fo|qr vkiwfrZ miyC/k
djkusa] vkns'kkas dh vogsyuk djus lfgr ds xEHkhj vkjksi
gSA ftlds fy;s vkids }kjk fyf[kr :i ls xyfr;ksa dks
ekurs gq;s ekQh Hkh ekaxh x;h gS rFkk vkids }kjk vius
O;ogkj esa cnyko u vkus ds dkj.k lEcf/kar mi[k.M
vf/kdkjh] jk;lh ds ek/;e ls lEcf/kar vuqcfU/kr QeZ
dks vkidks gVkus gsrq funZsf'kr fd;k x;k ,oa vkids
fo:} lEcaf/kr Fkkuk/;{k] dksrokyh yDlj dks Hkh
fyf[kr :i ls lwfpr fd;k x;k FkkA
4- vki ckg~; ,tsalh vuqcU/kdrkZ eSllZ ukenso ,.M
lUl] jkuhiqj eksM] gfj}kj ds dkfeZd ds :i esa vuqcU/k
dh 'krkZs ds vuqlkj dk;Z dj jgs Fks ,oa foHkkx dk
vuqcU/k Hkh vuqcU/kdrkZ ds lkFk gh gSA vr% vkidk
foHkkx ds lkFk dksbZ deZpkjh&fu;ksDrk dk laca/k ugha
jgk gSA vki ek= iznRr foHkkxh; dk;ksZ ds lEiknu gsrq
vuqcU/kdrkZ ds ek/;e ls dk;Z dj jgs Fks ,oa dk;Z o
O;ogkj larks"ktud u ik;s tkus ,oa vokaNuh;
xfrfof/k;ksa esa fyIr ik;s tkus ds dkj.k vuqcU/k dh 'krkZsa
ds vuqlkj mi[k.M vf/kdkjh] fo|qr forj.k mi[k.M]
jk;lh ds i=kad [email protected] fo0 mi[[email protected];[email protected]
fnukad 10-12-2018 ds }kjk vuqcU/kdrkZ dks vkids LFkku
ij izfrLFkkuh dh rSukrh gsrq fy[kk x;k gS tks fd foHkkx
fgr esa loZFkk mfpr fu.kZ; gSA^^
It is apparently reflected that the petitioner
was employed through an outsourcing agency and
coupled with the fact that his dis-continuance from
services was on account of the fact that he was
found to be engaged in the theft of electricity.
In view of the aforesaid, and looking to the
conduct of the petitioner, merely because of the fact
that he has suffered injuries on account of an
accident, which has chanced, while dispensing his
services, as an outsourced employee, that in itself
will not create any legally enforceable right for the
petitioner by invoking the writ jurisdiction under
Article 226 of the Constitution of India.
Hence, after scrutinizing the impugned order
of 12.03.2021, I do not find any apparent legal
anomaly in the order rejecting the representation,
hence the writ petition fails and the same is
accordingly, dismissed.
(Sharad Kumar Sharma, J.)
30.07.2021
Arti
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