Jammu & Kashmir High Court - Srinagar Bench
Arsh Majeed vs Ut Of J&K And Anr on 3 August, 2022
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
SWP No. 2076/16
Arsh Majeed
... Petitioner
Through: Mr. M.M Dar, Adv.
v.
UT of J&K and anr
...Respondent
Through: Mr. T.M Shamsi, ASGI. Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr. Justice Mohd Akram Chowdhary , Judge.
Impugned in the instant petition is final order dated 11.04.2016 passed in O.A No. 062/00009/2015 by Central Administrative Tribunal, Chandigarh Bench (Circuit Bench at Jammu) hereinafter called as "Tribunal", filed by the petitioner, wherein and whereunder the OA is dismissed.
Brief facts.
Petitioner claims to have been initially engaged as Farash by respondent-department directly as is evident from orders dated 04.07.2005 and 12.07.2005 (Annexures A-1 & A-2) of the O.A deploying the petitioner on duty in offices and also from attendance certificates to different months.
The petitioner and twelve others filed O.A No.105/JK/2007 titled Manzoor Ahmad Sheikh and ors v. Union of India and ors, which was disposed of along with O.A No. 103/JK/2007 filed by 21 applicants titled Sanjay Kumar & Ors v. Union of India & Ors, by common order dated 29.08.2007. In that O.A, the present applicant (herein petitioner) and others had claimed benefit of judgment dated 14.08.2002 passed by the Tribunal in the case of Kiran Pal and ors v. Unionof India & Ors. (OA No. 800/CH/2001) for regularization of 2 the services of the applicants and for minimum basic pay and D.A. The operative part of order dated 29.08.2007 is extracted below:
"....we dispose of both the O.As with a direction to respondents to ensure that the contractor continues the applicants in their job till there is need for work and their work and conduct is also found to be satisfactory till such need for work continues. Their claim for regularization shall be as per the decision of the Hon'ble Apex Court in SLP challenging orders at Annexures A- 1 & A-2 and respondents would be bound to extend the benefits to these applicants as per Supreme Court's judgment."
Pursuant thereto, the respondents have stated to have passed order dated 08.04.2011(Annexure A-5) granting the benefit of minimum basic pay and D.A, as per DOPT O.M dated 07.06.1988 to 31 out of 33 applicants of the aforesaid two O.As (excluding the petitioner and one Khurshid Ahmad Dar). It is stated that petitioner's services were orally terminated on 07.04.2011 without any reason, in an illegal and arbitrary manner.
Respondents are stated to have filed the Writ petition Nos. 675/2013 and 725/2011 challenging the common order (Annexure A-
4) in the aforesaid two O.As. The said writ petitions were dismissed by this Court by common judgment dated 11.12.2013. Thereupon, the petitioner submitted representation dated 16.12.2013 praying that he be taken back in service and seeking release of all arrears of pay with consequential benefits, followed by reminders dated 5.3.2014 & 5.5.2014, 28.06.2014 and 9.8.2014, evoking no response.
Respondents having failed to accede to the request of the petitioner for continuing him in service, left no option for the portioner but to approach the Central Administrative Tribunal and filed the petition challenging the oral termination as being without any reason. It is also stated that the juniors of petitioner who are engaged through contractor, have been continuing with respondents and so action of the respondents in ousting the petitioner is illegal and arbitrary.
3Respondents in their written statement inter alia pleaded that the petitioner was neither employee of respondents nor was directly engaged by the department. It is submitted that the petitioner was engaged as contractual worker by private contractor M/s Hope and Proud and thus has no inherent right to continue in service with the Department. It is submitted that orders placed on record are only allotment/attachment of the petitioner and others with offices/Branch offices, reflects only the attendance in terms of number of days for releasing payment to the contractor. It is further submitted that the petitioner was engaged by the Contractor for rendering service to the Department. The wages were being paid by the Contractor. It is further pleaded that the petitioner was not attending the office regularly and his work was not found satisfactory. Accordingly, the Contractor, through whom the petitioner was engaged, was informed vide communication dated 9.1.2008 that the petitioner's services were no more required w.e.f 1.1.2008. It is submitted that the petitioner was thus, rightly disengaged from service by the Contractor in terms of order dated 29.08.2007 passed by the Tribunal. The petitioner has no right for being considered to be re-engaged in service after long period of seven years from the date of his disengagement. Moreover, the petitioner could have pursued his case with the Contractor, when the petitioner was disengaged. It is also submitted that O.A is barred by limitation and the Tribunal has no jurisdiction to try the O.A as the petitioner is neither Central Govt Employee nor was directly engaged by the department for performing duties. No document proves that the petitioner was engaged directly by the respondents. It has been specifically denied that the petitioner continued to work with the department till 8.4.2011. In fact, his services were withdrawn w.e.f 1.1.2008 as his work was not satisfactory.
The petitioner filed rejoinder, wherein he refuted the version of respondents and reiterated his own version.
Before recording our finding about the decision of the Tribunal challenged in the writ petition, it has become necessary to extract paragraph 10 to 14 of the impugned order as below:
4"10. We have carefully considered the matter. We find force in the contentions of respondents whereas the contentions of the applicants are devoid of substance. There is no document or other material on record to support the assertion of the applicant that he worked with the respondents till 7.4.2011. on the other hand, there is categorical assertion of the respondents that the applicant was disengaged through Contractor w.e.f. 1.1.2008 vide letter dated 9.1.2008 (Annexure R-1) as his work was not found satisfactory and that the applicant did not work with the respondents till 07.04.2011. This assertion of the respondents finds support from letter (Annexure R-1). Moreover, the applicant has produced attendance certificates (Annexure A-3 Collectively) regarding number of days attended by him and others during various months i.e September, 2004, January, 2005, February 2005, March 2005, April 2005, May 2005, July 2005, June 2005, and October 2005. However, he has not produced any such attendance certificate for any month since January 2008 till April 2011. If the applicant had worked during the said period, he could produce similar attendance certificate at least for some of the months. On the other hand, there is no reason why the respondents would made false assertion regarding a verifiable fact. Thus it cannot be said that the applicant continued to work with the respondents till 07.04.2011 when he was allegedly terminated orally. On the other hand, the applicant was disengaged w.e.f 01.01.2008 vide letter (Annexure R-1). It is correct that the said letter was not communicated by the respondents to the applicant directly. However, it does not affect the case of the respondents because they rightly addressed this letter to the contractor through whom the applicant had been engaged. Moreover, the applicant could have automatically come to know of the said communication when he was disengaged in January 2008.
11.The instant OA is hopelessly barred by limitation. The applicant was disengaged w.e.f 01.01.2008. He could have filed the OA within one year i.e up to 01.01.2009. However, he filed the O.A on 14.07.2015 i.e. after delay of more than six and half years after expiry of limitation period of one year. Even if it be assumed for the sake of arguments only that the applicant was disengaged w.e.f 08.04.2011, even then he could have filed OA upto 08.04.2012, but it was filed more than three years three months thereafter. Thus, the OA is hopelessly barred by limitation. Limitation period is not extended merely by making of representation or successive representations. If a representation is not decided within six months, the aggrieved person has right to file OA within one year thereafter. In the instant case, however, the applicant did not even make any representation dated 16.12.2013 (Annexure A-7) which was made almost six years after he had been disengaged w.e.f 01.01.2008 (as per respondents' version) and two years eight months after he was allegedly terminated w.e.f 08.04.2011 as per applicant's version. It is found that even the first 5 representation was not made within limitation. It thus emerges that examined from any angle, the OA is hopelessly barred by limitation.
12. The plea of the applicant that benefit of DOPT OM dated 07.06.1988 has been extended to co-applicants of previous OAs vide order dated 08.04.2011 (Annexure A-5) but has not extended to the present applicant and one more person, does not help the applicant because the applicant had been disengaged w.e.f 01.01.2008 i.e three years three months prior to passing of order dated 08.04.2011 (Annexure A-5) and consequently, no such benefit could be extended to the applicant vide order dated 08.04.2011.
13. The plea that applicant's juniors are still working with the respondents also does not come to the rescue of the applicant because he was disengaged as his work was not satisfactory. It was done in consonance with the Tribunal's order Annexure A-
4. Consequently, disengagement of the applicant on account of his work being found not satisfactory does not suffer from any infirmity much less illegality.
14. Order dated 29.08.2007 of the Tribunal (Annexure A-4) also reveals that the present applicant and other co-applicants were to be allowed to continue in their job with the contractor. It would show that the applicant was not employee of the applicant but was employee of the contractor."
Having heard learned counsel for the parties and after examining the records, we could not find favour with the contentions raised by learned counsel for the petitioner for the relief claimed in the petition. All the issues raised by the learned counsel for the petitioner to seek his induction in service are exhaustively dealt with by the Tribunal in the paras of the impugned order extracted hereinabove.
We are in agreement with the findings recorded and the observations made by learned Tribunal in the order, therefore, are not inclined to interfere with the order of the Tribunal.
In the above background, the writ petition being without any merit, therefore, shall stand dismissed without costs.
(Mohd Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
Srinagar,
03.08.22
Ayaz
SYED AYAZ HUSSAIN
2022.08.03 11:15
I attest to the accuracy and
integrity of this document