Allowed

Jai Parkash v. State of Hp

Himachal Pradesh HC8 Jul 2021CWPOA/6084/2019

Case brief

AI extract

What is this about?

Petitioner, appointed as Pump Operator, was convicted, imprisoned, and dismissed. Authorities later sought his re-engagement on daily wages but did not act. Court allowed petition, directing respondents to re-engage the petitioner as per their own decision.

What did the court decide?

Respondents directed to re-engage the petitioner on daily wage basis as per their own decision dated 27.02.2004.

Jai Parkash Vs State of Hp — Service and Employment | Himachal Pradesh HC (2021)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWPOA No. 6084/2019 Reserved on: 06.07.2021 Decided on: 08.07.2021 _______________________________________________________________ Jai Prakash …..Petitioner Versus State of Himachal Pradesh & Ors. ……Respondents _____________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes. For the petitioner: Mr. Ramesh Sharma, Advocate. For the respondents: Mr. Adarsh Sharma and Mr. P.K. Bhatti, Addl. AGs with Mr. Yudhvir Singh Thakur, Dy. AG. (Through video conferencing)

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______________________________________________________________ Chander Bhusan Barowalia, Judge

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The petitioner has passed his matriculation examination in the year 1984 and thereafter did ITI Diploma in Motor Mechanic in the year 1988. The petitioner enrolled himself with Employment Exchange Arki, District Solan and his name was sponsored by the the said Exchange for the post of Pump Operator in the respondent-Department. The petitioner appeared in the interview and got selected and vide Annexure A-3, appointed as Pump Operator with the respondentDepartment. The petitioner joined his duties with the respondent-Department on 01.09.1992 and continuously worked till 23.06.2002. However, in the meantime, the wife of

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the petitioner made a complaint against him, for which he was tried and ultimately found guilty under Section 377 of the Indian Penal Code and resultantly convicted. The judgment of conviction was upheld by this Hon’ble High Court. Consequently, the petitioner underwent the sentence of one year w.e.f. 24.06.2002 to 17.05.2003 and since the petitioner was absent from the duties during the aforesaid period, the respondent-Department issued a show cause notice against him. However, the petitioner could not reply the aforesaid notice, as at that time he was in jail. After undergoing the sentence, the petitioner submitted his representation (Annexure A-4) to Assistant Engineer, Irrigation and Public Health Department, Solan, requesting for his re-engagement as Pump Operator. Thereafter, vide Annexure A-5, the Superintending Engineer, Irrigation and Public Health Circle, Nahan, wrote a letter to respondent No. 2, requesting that there is no legal bar to re-engage the petitioner on daily wage basis, as per instructions of the office, and sought permission to re-engage him as Pump Operator, considering his past services. Respondent No. 2, vide Annexure A-6, asked Superintendent Engineer, I&PH Circle, Nahan, to do the needful in light of the instructions, issued vide office letter No. IPH-ES-III D.W. Employ/03-20061-20161 dated 27.02.2004, for engagement of the petitioner, for 89 days, on daily wage basis. However,

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neither the petitioner was re-engaged as Pump Operator, nor as Beldar on daily wage basis. The petitioner has though submitted several representations to different authorities, including the respondents, but the respondents, without any plausible reason kept the matter pending and did not take any decision upon the same, thus, feeling aggrieved by the acts and conduct of the respondents, he approached the erstwhile learned Administrative Tribunal by way of filing OA No. 4643/2015, which, on being transferred to this Court, is now registered as CWPOA No. 6084/2019.

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In reply to the petition, it is admitted that the petitioner was initially appointed on daily wage basis as Pump Operator with the respondent-Department. It is averred in the reply that the petitioner did not turn up on work w.e.f. 24.06.2002, as such, he was issued notice, Annexure R-1, dated 20.07.2002, asking him to attend the duties immediately and explain his position regarding absence from the duties. Thus, it has come to the notice of the respondent-Department that the petitioner has been convicted by the Court in a criminal case and, therefore, treated as terminated from the services from the date of his absence. Though, after serving the sentence the petitioner requested for his re-engagement on daily wage basis and his case was taken up with the higher authorities, but considering that the petitioner having been convicted and

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undergone imprisonment, was not re-engaged on daily wages.

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In rejoinder to the reply filed by the respondentsState the contents of the petition were reasserted.

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Mr. Ramesh Sharma, learned counsel for the petitioner has argued that the petitioner after undergoing imprisonment of one year, made a representation to the respondent-Department to re-engage his services, as he has served for ten years on daily wage basis as Pump Operator, however the respondents did not do the needful, despite the fact that permission in this regard was sought by Engineer-in-Chief (I & PH) Shimla, vide Annexure A-6.

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On the other hand, Mr. Yudhvir Singh Thakur, learned Deputy Advocate General, has argued that the petitioner stood terminated because he was convicted and sentenced and remained absent from service on account of the incarceration, thus, he cannot be re-engaged in service.

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In rebuttal, Mr. Ramesh Sharma, Advocate, has argued that as the respondents have themselves taken the conscious decision qua engagement of the petitioner on daily wage basis for 89 days, considering his past service, at least the present petition is required to be allowed by directing the respondents to re-engage the petitioner on daily wage basis.

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The relevant portion of letter dated 07.05.2006 (Annexure A-6) reads as under:

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“From Engineer-in-Chief, I&PH Department, Shimla-1 The Superintending Engineer, Irrig. Cum P.H. Circle, Nahan. Subject: Absence of Shri Jai Prakash, daily wage P/C LWSS Jadly Sheora for Govt. duty.

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Please refer to your office letter No. PW. IPH-Jai Parkash P.O./04-1473-74, dt. 6.5.2004 on the above cited subject.

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Shri Jai Parkash has opted for his engagement orders of Beldar vide representation dt. 7.5.2004 (copy enclosed). You are requested to do the needful in the above matter in the light of instructions issued vide this office letter No. IPHES-III-D.W. Employ/03-20061-20161 dt. 27.2.2004 for his engagement for 89 days.”

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Though the petitioner was convicted and has undergone sentence, however, before that, he has served the department for ten years as Pump Operator and there is no bar that the petitioner cannot be re-engaged in service. Further, vide Annexure A-5, it has been requested that permission to engage the petitioner on daily wage basis can be considered. In response to Annexure A-5, respondent No. 2, vide Annexure A-6, asked Superintending Engineer, I&PH Circle, Nahan, to do the needful qua engagement of the petitioner for 89 days. When the respondents have themselves taken a conscious decision to re-engage the petitioner on daily wage basis for a period of 89

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days, vide Annexure A-6, this Court finds it appropriate that in the peculiar facts and circumstances of the present case and to meet the ends of justice, the present petition is required to be allowed. Consequently, the petition is allowed and the respondents are directed to re-engage the petitioner on daily wage basis, as per their own decision (Annexure A-6).

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The petition is disposed of in the aforesaid terms, so also pending application(s), if any.

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(Chander Bhusan Barowalia) Judge

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8^th July, 2021 (raman)

Jai Parkash v. State of Hp

Case brief

What is this about?

What did the court decide?

Jai Parkash v. State of Hp

Case brief

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What did the court decide?

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