Chandra Shekhar Tewari v. Managing Director, U. P. S. R. T. C.
2016-04-20
ASHWANI KUMAR MISHRA
body2016
DigiLaw.ai
JUDGMENT : Heard learned counsel for he petitioner and Sri S.K. Mishra, learned counsel appearing for the respondents. This petition has been filed for a direction upon the respondents to allow the petitioner to rejoin his duties and to pay him salary regularly. It has also been prayed that the entire emoluments payable from 1987 along with other benefits be paid to the petitioner. 2. A perusal of the record goes to show that petitioner appeared in selection proceedings undertaken by the respondent corporation for appointment to the post of conductor. He was placed in the waiting list. A communication was issued on 22.5.1987, requiring the petitioner to contact the office of the Corporation so that he could be offered an opportunity to serve the Corporation. Annexure-3 to the writ petition is a certificate issued by the Assistant Regional Manager dated 1.6.1987 that petitioner has undertaken required steps and that since he has not been sent for training, as such, he be attached with some conductor for 7 days for the purposes of training. A further certificate has been brought on record as Annexure-4, according to which petitioner was to undertake training from 1.6.1987 to 7.6.1987. It has been stated in the writ petition that on 4.8.198, he went on leave as he had fallen sick and a prayer was made to extend his leave vide letter dated 16.8.1987. It is then stated that petitioner reported before the Ghazipur depot on 2.9.1987 but he was not allowed to join. Petitioner states that he made subsequent representations on 3.2.1988 and thereafter on 5.6.1996, and 7.4.1997 but no decision was taken in the matter. Present writ petition has thus been filed. 3. A counter affidavit has been filed in which it is stated that petitioner was deputed to function as conductor of Bus No. UHK -347. On 4.8.1987, while bus was checked it was found that 22 passengers out of 36, travelling in the bus were not having any ticket. It is stated that facts were verified and the name of petitioner was struck off from the waiting list vide order dated 17.9.1987. It is stated that in such circumstances, petitioner had no right to work as he was merely placed in the waiting list and on account of the facts noticed above, his name was struck off from the waiting list. 4.
It is stated that in such circumstances, petitioner had no right to work as he was merely placed in the waiting list and on account of the facts noticed above, his name was struck off from the waiting list. 4. Learned counsel for the petitioner submits that the charge levelled against the petitioner of carrying 22 ticket-less travellers has been levelled for the first time in the counter affidavit and no order has been passed or served upon the petitioner in this regard. It is also contended that no proceedings known to law were undertaken against petitioner. It is stated that petitioner could not be removed from waiting list, as the basis of adverse action was an act of alleged misconduct. Reliance has been placed upon the judgment of Apex court in Union of India and others Vs. Dinanath Shantaram Karekar and others, (1998) 7 SCC. It is also submitted that the order striking of petitioner's name from waiting list, has also not been served upon the petitioner. 5. The submission is opposed by the learned counsel for the respondent, contending that status of petitioner was merely that of a temporary employee and no right to continue in the employment of the Corporation had crystallized in favour of the petitioner. It is stated that the decision to remove name of petitioner from waiting list would not amount to causing any stigma and considering the nature of engagement and the order passed no disciplinary proceedings were required to have been drawn. It is also stated that although petitioner has admitted in the writ petition that he was not allowed to join in 1987 itself but no action was taken and the present writ petition filed after more than 13 years is otherwise barred by latches. 6. I have learned counsel for the parties and have perused the record. 7. From the materials on record, it is apparent that the petitioner had participated in the selection proceedings and he was placed in the waiting list. Though it transpires that petitioner was permitted to serve the Corporation but there is no order of appointment issued in favour of petitioner. The averments made in the counter affidavit that petitioner was only allowed to continue as temporary employee, appears to have substance in view of the fact that no order of appointment has been brought on record. 8.
Though it transpires that petitioner was permitted to serve the Corporation but there is no order of appointment issued in favour of petitioner. The averments made in the counter affidavit that petitioner was only allowed to continue as temporary employee, appears to have substance in view of the fact that no order of appointment has been brought on record. 8. According to the respondent, petitioner was found carrying 22 ticketless travellers and that was the reason for the petitioner's claim to have been struck off from the waiting list. This Court finds substance in the contention advanced by Sri B.N. Singh, learned counsel for the petitioner that in case the decision of removing petitioner from waiting list was being taken on an allegation of misconduct, then disciplinary proceedings were required to have been conducted. Law in this regard stands settled in the case of Parshotam Lal Dhingra Vs. Union of India, AIR 1958 SC 36 . However, in the facts of the present case, no relief is liable to be granted to the petitioner in view of the following circumstances:- (a) Petitioner was merely placed on the waiting list and no contract of employment had come into being between the petitioner and the respondent corporation.Since the petitioner continued to be in waiting list, as such, taking of work from him would not change his status and the petitioner cannot be given the status of regular employee. (b) As per averments made in the writ petition, petitioner was not allowed to join after he reported for duty in September, 1987. A cause of action had arisen to the petitioner at that stage, but he never pursued his grievance nor has he resorted to the remedy available in law. 9. Present writ petition has been filed after a gap of 13 years, in the year 2000. It is stated that two representations in between had been made in the 1996 and 1997. The explanation on behalf of the petitioner to explain latches in filing of the writ petition does not inspire confidence. Law is otherwise settled that mere making of representation does not have the effect of extending limitation. Reference may be made to the judgment of Apex Court in State of Tripura Vs. Arabinda Chakraborty, 2014 (6) SCC 460 . 10.
The explanation on behalf of the petitioner to explain latches in filing of the writ petition does not inspire confidence. Law is otherwise settled that mere making of representation does not have the effect of extending limitation. Reference may be made to the judgment of Apex Court in State of Tripura Vs. Arabinda Chakraborty, 2014 (6) SCC 460 . 10. Learned counsel for the petitioner submits that the writ petition stands entertained, as such, the issue of latches may not be gone into at this stage. This submission is not liable to be accepted, inasmuch the fact that a counter affidavit had been called in the matter, would not imply that issue of latches, involved in the writ petition, stands condoned. The explanation offered for a delayed filing of the writ petition (i.e. making of representation) is not liable to be accepted. 11. Considering the aspect of latches in moving of the writ petition as well as in view of the fact that being a temporary employee, petitioner, otherwise, had not perfected any right of continuance in the employment of the Corporation, no relief is liable to be accorded. Even otherwise, period of nearly 30 years have expired while petitioner has remained out of service. No stigma is, otherwise, attached to the petitioner in case his name is struck off from the list of employees placed in the waiting list. 12. In view of the above, writ petition fails and is dismissed.