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Himachal Pradesh High Court · body

2017 DIGILAW 732 (HP)

Nagar Panchayat Daulatpur Chowk v. Kewal Kumar

2017-06-29

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. Instant Letter Patent Appeal is directed against the judgment, dated 14.12.2010, passed by learned Single Judge in CWP (T) No.6077 of 2008, (for short ‘impugned judgment’), whereby learned Single, while allowing the petition having been preferred by respondent No. 1 (hereinafter referred to as the ‘petitioner’) directed the respondent-appellant(hereinafter referred to as the respondent No. 2) to consider the case of the petitioner for appointment as Supervisor in one month from the date of supply of copy of this judgment by the petitioner and appoint him as Supervisor within two weeks thereafter. The learned Single Judge also held respondent No. 2 liable to pay the wages of the petitioner as Mate w. e. f. 2.4.1998 to 28.4.1998. 2. Briefly stated facts, as emerged from the record are that the petitioner was engaged as Mate on daily wages in August, 1996 by the respondent No.2 and as such, he continued to wok till September, 1997 when respondent No.2 submitted a proposal for regularization of petitioner as Mate. However, fact remains that Director, Urban Development in response to the communication dated 24.7.1997 sent letter dated 24.10.1997 to the President of respondent No.2 observing therein that Section 53(1) (c) of the H.P. Municipal Corporation Act, 1994 (sic) provides that the total expenditure on establishment should not exceed one third of the total expenditure of the municipality. Aforesaid department further observed that since Nagar Panchayat, Daulatpur Chowk does not fulfill the said condition, therefore, department regret to concur with the proposal for the creation of regular post of Mate. However, perusal of aforesaid communication sent by the Director, Urban Development clearly suggests that it was specifically observed that existing incumbent Kewal Kumar shall continue to work as Mate on daily wages. It also emerge from the record that appellant-respondent taking undue advantage of aforesaid communication having been sent by the Director Urban Development made petitioner to enter into an agreement for the post of Mate on a consolidated pay of Rs. 1500/- for a period of six months. Accordingly, he was appointed as Mate on contract basis. Subsequently, on 1.5.1998, respondent No.2 terminated the services of the petitioner and he was not paid the wages from 1.4.1998 to 30.4.1998, despite the fact that he had worked for the said period after the expiry of contract period also. 3. 1500/- for a period of six months. Accordingly, he was appointed as Mate on contract basis. Subsequently, on 1.5.1998, respondent No.2 terminated the services of the petitioner and he was not paid the wages from 1.4.1998 to 30.4.1998, despite the fact that he had worked for the said period after the expiry of contract period also. 3. It also emerge from the record that after alleged termination of the petitioner, respondent No.2 engaged one Madan Lal as Mate, as a result of which, petitioner was compelled to file Original Application No. 1021 of 1998 in H.P. Administrative Tribunal. During the pendency of aforesaid original application before the learned Tribunal, respondent No.2 passed a resolution and resolved that service of the petitioner, who had been working as Mate, be engaged as Supervisor on the condition of his withdrawing the case filed in the Tribunal. The petitioner on the basis of aforesaid resolution, withdrew the original application but despite that appellant/department failed to engage petitioner as Supervisor in view of the resolution, as referred above. In the aforesaid background, the petitioner filed the instant OA No.2629 of 1999, which lateron came to be registered as CWP(T) No.6077 of 2008. 4. In nutshell, the case of the appellant-respondent before the learned Tribunal was that the petitioner himself withdrawn Original Application No.1021 of 1998 without any liberty and as such, he cannot file similar petition again. Appellant-respondent further claimed that petitioner was engaged on contract for six months on the basis of agreement dated 1.10.1998 and as such, his engagement was over by afflux of time. However, respondent-appellant categorically admitted that the petitioner was engaged as Mate as well as Tax Collector on 24.8.1996 and he worked with the appellant-respondent till 31.7.1997on daily wage basis. Appellant-Respondent further admitted that proposal was made to respondent No.1 for appointment as regular Mate on 24.7.1997. The appellant-respondent in the meeting held on 12.9.1997 had resolved to appoint the petitioner as Work Supervisor-cum- Tax Collector on contract basis for a period of six months. Appellant-respondent further claimed that services of the petitioner were terminated in accordance with condition No.4 of the agreement, which came to an end on 31.3.1998. The petitioner also placed on record copy of daily attendance sheet for the month of April, 1998 i.e. Annexure P-3, wherein his presence has been marked having worked as Mate from 2.4.1998 to 28.4.1998. Appellant-respondent further claimed that services of the petitioner were terminated in accordance with condition No.4 of the agreement, which came to an end on 31.3.1998. The petitioner also placed on record copy of daily attendance sheet for the month of April, 1998 i.e. Annexure P-3, wherein his presence has been marked having worked as Mate from 2.4.1998 to 28.4.1998. Similarly, petitioner placed on record letter dated 17.12.1999 of Secretary, Nagar Panchayat, Daulatpur Chowk informing therein the candidates that the interview for the post of Work Supervisor on contract basis for six months has been fixed on 24.12.1999. 5. After having carefully gone through the pleadings as well as record made available to this Court, there is no dispute, if any, with regard to the petitioner engagement on daily wages as made by the respondent in August, 1996. Similarly, there is no dispute that the petitioner continuously worked as Mate on daily wages till September, 1997. On 24.10.1997, the Director, Urban Development while declining the request of appellant department for creation of post of Mate, directed Nagar Panchayat, Daulatpur Chowk to allow existing incumbent Kewal Kumar to work as Mate on daily wages. Similarly, this Court finds that despite there being specific direction from the Director, Urban Development State of Himachal Pradesh, appellant/Department dispensed with the services of the petitioner and appointed him as Mate on contract basis as per agreement dated 1.10.1997 for a period of six months. There is no dispute that after disengagement of the petitioner on 1.5.1998, appellant-respondent engaged one Madan Lal as Mate, meaning thereby, sufficient work was available with the appellant-department at the time of dispensing with the services of the petitioner. The appellant/department made petitioner to withdraw his original application bearing No. 1021 of 1998 on the basis of resolution passed by the respondent-appellant, wherein it was resolved that he would be appointed as Supervisor subject to withdrawal of original application, as referred hereinabove. The appellant/department made petitioner to withdraw his original application bearing No. 1021 of 1998 on the basis of resolution passed by the respondent-appellant, wherein it was resolved that he would be appointed as Supervisor subject to withdrawal of original application, as referred hereinabove. Since, there is candid admission having been made by the appellant/department that communication dated 24.10.1997 was not received by the respondent but they came to know of the communication dated 25.10.1997 during the pendency of the O.A. No. 1021 of 1998, this Court sees considerable force in the arguments having being made by the learned counsel representing the petitioner that there was no occasion for the appellant/department to dispense with the services of the petitioner after issuance of letter dated 24.10.1997. 6. Similarly, this Court finds that the appellant/department failed to appoint the petitioner as Supervisor despite there being specific resolution, after withdrawal of original application No. 1021 of 1998 having been filed by the petitioner. The appellant/department instead of offering appointment to the petitioner, appointed one Naresh Kumar as work supervisor on 3.1.2000 in flagrant violation of the resolution passed by it, which clearly suggest that petitioner was deprived of job and he was unnecessarily pushed to the wall. 7. After having carefully perused the entire material available on record, especially the stand taken by the appellant/department before the learned Single Judge, this Court has no hesitation to conclude that the appellant department has not acted fairly while appointing the petitioner as Mate on contract basis after issuance of letter dated 24.10.1997 issued by the Director, Urban Development. Similarly, there was no occasion for the appellant-department to appoint other person namely Naresh Kumar as Work supervisor, especially when the petitioner was made to withdraw the OA No.1021 of 1998 on the pretext that in the event of his withdrawing original application, he would be appointed as a supervisor. 8. Consequently, in view of the detailed discussion made hereinabove, we see no reason to interfere with the impugned judgment, which is well reasoned and legal one. Accordingly, the impugned judgment is upheld and appeal is dismissed This Court finds that petitioner is out of job since 31.3.1998 and as such, this Court deems it fit to direct the appellant/department to do the needful in terms of the judgment passed by the learned Single Judge, within a period of four weeks, from today. Accordingly, the impugned judgment is upheld and appeal is dismissed This Court finds that petitioner is out of job since 31.3.1998 and as such, this Court deems it fit to direct the appellant/department to do the needful in terms of the judgment passed by the learned Single Judge, within a period of four weeks, from today. Pending applications, if any, shall also stands disposed of.