Central Administrative Tribunal - Delhi
Sarvesh Kumar vs Delhi Transport Corporation, Govt. Of ... on 28 November, 2019
1 OA No-279/16
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 279/2016
This the 28th day of November, 2019
Hon'ble Mr. S.N. Terdal, Member (J)
Hon'ble Mr. A.K. Bishnoi, Member (A)
Sarvesh Kumar, Age-29 years
Conductor
S/o Sh. Devi Charan
R/o A-205, Taj Pur Pahari
Badarpur, New Delhi-44. ...Applicant
(through Sh. Pramod Kumar)
Versus
Delhi Transport Corporation
Through its Chairman
IP Estate, New Delhi. ...Respondent
(through Sh. C. Bheemanna)
ORDER (Oral)
Hon'ble Mr. S.N. Terdal:
Heard. Perused the pleadings and all the documents.
2. The relief prayed for by the applicant in the OA are as follows:
" (a) Issue directions/orders setting aside the order dated 10/09/2015 terminating the services of the Applicant and refusing to renew his contract:
2 OA No-279/16
(b) issue orders directing the Respondent to reinstate the Applicant with consequential benefits;
(c) pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
3. The relevant facts of the case are that the applicant was appointed as a contractual Conductor initially for 89 days from 08.02.2011 to 07.05.2011 and the said contract was extended from time to time and his last contract was to get over on 07.08.2013 but, however, in the meantime, he remained absent for his involvement in a criminal case, FIR No. 285/2012 under Section 498A/304B/34 of the IPC. Subsequently, he made a representation on 21.08.2013 for his re-engagement but, however, the said representation was not considered. Subsequently, he went on making representation up to 2015 and by the respondents' order dated 10.09.2015, the request for re-engagement as contractual Conductor in their organization, namely, DTC was rejected. The applicant filed the present OA challenging the said order dated 10.09.2015.
4. The learned counsel for the applicant vehemently and strenuously submits that in the interest of justice and in view of the provisions of Articles 14, 16 & 21 of the Constitution of India and in the interest of reasonableness, 3 OA No-279/16 the respondents should have considered his representation for re-engagement and they should have re-engaged him as contractual Conductor.
5. The respondents have filed detailed counter affidavit. In that they have made specific reference to Section 2(oo) sub clause (bb) of the Industrial Dispute Act, 1947 in justification of the impugned order and they have stated that because of his unauthorized absence, the respondents corporation also suffered huge financial loss and because of his conduct and in view of the above said provision, they are unable to re-engage the applicant. The relevant portion of the averments are extracted below:
"1. It is stated and submitted that the applicant has not approached this Hon'ble Tribunal with clean hand and has conveniently twisted the facts as per his convenience only with an intention to deceive this Hon'ble Tribunal and make out a false and fabricated case against the corporation. It is submitted that the applicant Sh. Sarvesh Kumar was initially engaged by the corporation for 89 days at the post of conductor w.e.f. 08.02.2011 to 07.05.2011. The applicant's term of service was thereafter lastly renewed for the period of 1 year i.e. from 08.08.2012 to 07.08.2013. Needless to say the applicant was causal employee and was employed as a contractual worker in the corporation and his service was not continuous in nature. It is submitted that the applicant was unauthorized absent from his duty without any intimation to the department w.e.f. 27.09.2012 i.e. after few days of renewal of his service and his contract was over on or after 07.08.2013 and was never renewed by the corporation. Needless to say the services of the applicant terminate soon after the expiry of the 4 OA No-279/16 renewal period and in the absence of any renewal of service and it is settled proposition of law that applicant cannot claim his service as a matter of right after the expiry of renewal period. It is submitted that the applicant made a representation on dated 05.05.2015 i.e. after the lapse of almost 3 years of his unauthorized absent to the respondent requesting to reinstate him and was also informed that the reason for his unauthorized absent was his wife committed the suicide and a criminal case was registered by the PS Badarpur FIR No. 285/2012 under section 498A/304B/34 IPC and Police has arrested him on 27.09.2012 and his case was under trial in the Saket Court.
It is pointed out that as per the applicant he was acquitted by the Additional Session Judge-02, South-East, Saket Courts, New Delhi on 26.07.2013. The applicant didn't intimate the office of the respondent of his unauthorized absent from the duty and now the applicant cannot take shelter that he was involved in the criminal case of dowry death of his wife, therefore on the sole account he failed to intimate the office of the respondent. It is stated and submitted that the applicant made a representation on 05.05.2015 i.e. after lapse of so many time of his acquittal and in no manner whatsoever it may be considered as he justified and fair reason for non intimation to the organization. It would not be out of place to mention here that only because of unauthorized absent of the applicant the Delhi Transport Corporation has suffered a huge loss which cannot be compensated in any manner whatsoever and the unauthorized absent of the applicant is nothing but a misconduct and is also against the service as well as professional ethics, therefore on the sole account the original application is bad in the eyes of law and is liable to be dismissed. It is pertinent to mention here that it is settled proposition of law as per section 2 (oo) sub clause (bb) of the Industrial Dispute Act, 1947:-
"retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, 5 OA No-279/16 but does not include--(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or 2*[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or
(c) termination of the service of a workman on the ground of continued ill-health;].
Needless to say from the bare perusal of aforesaid law it is crystal clear that expiry of period of service does not need retrenchment/termination, therefore the applicant cannot take shelter that his services were terminated by the department in other words, as per the law his services got expired and it was never renewed, therefore the applicant is any manner whatsoever is not entitled for reengagement and cannot claim the same as matter of right."
6. In view of the justification given by the respondents in their counter affidavit extracted above there is no arbitrariness in the passing of the impugned order dated 10.09.2015, and, we are of the view that this OA is without any merit. Accordingly, the OA is dismissed. No order as to costs.
(A.K. Bishnoi) (S.N.Terdal)
Member (A) Member (J)
/ns/