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2018 DIGILAW 412 (UTT)

POONAM DOBRIYAL v. ONGC

2018-08-01

ALOK SINGH

body2018
JUDGMENT Hon'ble Alok Singh, J. 1. Common questions of fact and law are involved in both the writ petitions, therefore, both the writ petitions are heard together and are being disposed of by this common judgment. 2. Initially, petitioner was appointed as Security Receptionist in December, 1994 for a period of one year. Thereafter, she was appointed as Security Inspector Grade – II between 23.08.1996 and 31.12.2004 for different tenures. On 31.01.2005, petitioner was again appointed as Field Operator – Telecom for a period of four years. Again, she was appointed on tenure basis and her last tenure appointment was made with effect from 01.01.2013 to 31.12.2016. Thereafter, petitioner was not further engaged and it was communicated to her vide order dated 29.12.2016. Vide order dated 14.12.2016, she was asked to vacate official residence. In the meantime, petitioner approached this Court by way of filing WPSS No.341 of 2016, which was disposed of by this Court on 31.11.2016 by observing as under: “The only prayer of the petitioner at this stage is that a direction be given to the respondent authorities to decide her representation. In view thereof, the writ petition stands disposed of with a direction to the respondent authorities to decide the representation of the petitioner in accordance with law." 3. On 15.12.2016, petitioner moved a representation before the respondent Corporation for extension of her term, which was rejected vide order dated 24.03.2017. Feeling aggrieved, petitioner has approached this Court challenging the orders dated 14.12.2016, 26.12.2016 and 24.03.2017. Now, petitioner is no more in service. 4. Heard Mr. M.C. Pant, Advocate for the petitioner and Mr. Rakesh Thapliyal and Mr. Siddharath Sah, Advocates for respondents. 5. Mr. M.C. Pant, Advocate for the petitioner submits that as per order dated 31.01.2005, petitioner was engaged on the post of Field Operator – Telecom and her appointment was subject to decision of Hon'ble High Court of Gujrat / CGIT-cum-Labour Court, Gujrat in Special Leave Civil Appeal No. 17161 of 2004 / CGITA No. 1476 of 2004. He further contends that in compliance of the said order services of the workmen had already been regularized. 6. Mr. He further contends that in compliance of the said order services of the workmen had already been regularized. 6. Mr. Rakesh Thapliyal, Advocate for the respondents submits that vide order dated 31.01.2005 petitioner was engaged for a period of four years and in 2009, petitioner was re-engaged and she accepted the new offer for appointment, therefore, the moment, petitioner accepted the new engagement order, she has no right to say that her appointment was subject to decision of Hon'ble Gujrat High Court. 7. I find force in the argument of Mr. Rakesh Thapliyal, Advocate for the respondents. Conditions laid down in the engagement order dated 31.01.2005 would go automatically with the expiry of engagement order until it is challenged or extended. In the present case, respondent offered new appointment and petitioner accepted it. 8. Learned counsel for the petitioner submits that judgment of Hon'ble Gujrat High Court should read in rem for regularizing the service of the petitioner. 9. The judgment of Hon'ble Gujrat High Court cannot be read in rem because it relates to 577 tenure appointees, whose cases had been referred by the Government to CGIT. The Division Bench of Hon'ble Gujrat High Court confirmed the award of Tribunal vide judgment dated 29.04.2015 and the Tribunal itself while passing the award had observed as under: “22. Issue No. VIII. Upon arriving at the findings in the foregoing paragraphs to issue no. I to VII this Tribunal hereby pass the following orders: (i) Out of 577 term base appointee of 1999, 2000 and 2001 as per list attached to the reference, those who either expired or resigned or terminated or tenure complete or are absent are now out of the court and so those are not entitled to get any relief in spite of raising demand by the Union under the reference. ……. …… (v) Out of 577 appointees, as per list attached to the reference, 30 persons who are separated as per list of Field Operator furnished by the first parties on 18.07.2011 are not entitled to get any relief." 10. Mr. M.C. Pant, Advocate for the petitioner submits that in view of the judgment passed by Hon'ble Apex Court in the case of ONGC Vs. Petroleum Coal Labour Union reported in 2015 (6) SCC 494 : 2015 (1) UAD 799 , petitioner is entitled for regularization. 11. Per contra, Mr. Mr. M.C. Pant, Advocate for the petitioner submits that in view of the judgment passed by Hon'ble Apex Court in the case of ONGC Vs. Petroleum Coal Labour Union reported in 2015 (6) SCC 494 : 2015 (1) UAD 799 , petitioner is entitled for regularization. 11. Per contra, Mr. Rakesh Thapliyal, Advocate for the respondents submits that no writ of Mandamus can be issued for regularization of a tenure based employee. In support of his contention, he has placed reliance on the judgment of Hon'ble Apex Court in the case of India Literacy Board and others Vs. Veena Chaturvedi and others reported in 2005 (3) SCC 79 . 12. Judgment relied by the petitioner has no application in the present case because petitioner does not fall within the definition of workman, as defined in the Industrial Disputes Act, 1947. Even otherwise, petitioner was a tenure appointee and no more in service, as such no direction for regularization can be passed. 13. In view of the above discussion, I do not find any merit in the petitions. Writ petition fail and are hereby dismissed. Let copy of this judgment be placed in the connected petition. No order as to costs.