Allowed

P.Mallikarjun, Hyderabad. v. the Chairman and M.D., the Oriental Insurance Co., and 3 Others

Telangana HC27 Jan 2022WP/20009/2006

Case brief

AI extract

What is this about?

This Writ Petition seeks regularization of the petitioner's services. The petitioner, appointed as a guest house caretaker in 1998, alleged his post was changed to a contractor role. The High Court, finding him treated as an employee via salary records and tax deductions, directed regularization.

What did the court decide?

Directing the respondents to regularize the petitioner as sub-staff/caretaker from 1998 with all attendant benefits including salary enhancement and increments.

P.Mallikarjun, Hyderabad. Vs the Chairman and M.D… — Service and Employment | Telangana HC (2022)

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HIGH COURT FOR THE^{STATEOF TELANGANA} AT HYDERABAD (SPecial Original Jurisdiction)

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THURSDAY, THE^{TWENTY SEVENTH DAY OF JANUARY} TWO THOUSAND^{AND TWENTY TWO}

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PRESENT

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THE HONOURABLE^{SMTJUSTICE P.MADHAVIDEVI}

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WRIT PETITION No^{: 20009OF 2006}

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Between:

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P.Mallikariun, s/o^{P.Veeraswamy, aged33 years,Rl/o 33-Classic Emerald, Road No.10'} (New No.4) Banjara Hills, Hyderabad.

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...PETiTIONER

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AND

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1 The Chairman and^{ManagingDirector,The Oriental lnsurance Company Limited'} i'o.o;""i;lioiie. x-zitzi,^{Asaf AliRoad, New Delhi-110 002}

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The Chief Regional^{lvlanager,6-3-871, Snehalatha,P B -45' GreenlandsRoad'} Begumpet, HYderabad-500^{01 6.}

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3 The Reoional Manaqer^{(Personal) 6-3-871, Snehalatha'P B 45' Greenlands} Road, B"egumPet,^{HYderabad-500 016,}

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4 The Regional^{lvlanager,Guest Houseln-cl11rge^'r} 9-1-971'^{SnehalathaP'8.-45'} criunrrl-]oi^{Road, Blgumpei'uyoeraoao-sod016' R2, R3' R4 as oriental} lnsurance ComPanY^Limited

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(RR 2 to 4 as Oriental^{lnsurance Company Limited)}

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,,.RESPONDENTS

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Petition under^{Article 226 of the constitutionof lndia praying that.in the} i" circumstancesstatedintneaffrdavitfiledtherewith,theHighCourtmaybe-pleased^-iiir" an^{order or direciion more particularly one in the natureof writ of} mandamusdeclaringtneactionoftherespondentsinchangingthenatureofpostof by agreement^{dt.16-8-2006 is illegal' arbitraryand} a caretaker to^{as a} "ontr".to|. "ior"t,""^{of Article 16 and iiof coistitutionof lndia andconsequentlydirectthe} i".ponoents to^{regularize the serviceof the petitioneras a caretaker in the} ,".[".J".t compatiy^{and grant other benefits to the petitioner and pass'}

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IA NO: 4 OF 2018

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PetitionunderSectionl5lcPcprayingthatinthecircumstancesStatedin the affidavit filed^{in supportof the petition, the tilgh courtmaybe pleaseddirect the} office the case^{for hearingforthwiihby fixing a dite in this month for finaldisposal} and pass

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Counsel for the^{Petitioner: SRI.P.VENKATESWAR RAO}

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Counsel forthe^{Respondents:SRIA'KRISHNAMRAJU}

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The Court made the^{followingORDER}

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THE HONOURABLE SNIT. JT-IST'ICE P. NIADHAVI DEI'I

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WRIT PETITION NO.2OOO9 OF 2006

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ORDER

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This Writ Petition has been filed by the petitioner under Article 226 of the Constitution of lndia seeking a direction rrore particularly one in the nature of Writ of Mandamus declaring the action of tlie respondents in changing the nature of the post of caretaker to the post ofa contractor by agreernent dt.16.08.2006 as illegal, arbitrary and in violation of Articles 16 and 2l of the Constitution of India and to consequently direct the respondents to regularise the services of tlie petitioner as caretaker in the respondent cornpany and grant other benefits to the petitioner as this Hon'ble Court rnay deem fit and proper in the circumstances of the case.

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Brief facts of the case as stated by the petitiouer are that the petitioner was appointed as a caretaker of the guest house in the respondent company at Banjara Hills, Hyderabad in 1998. At the tinre of appointment as a caretaker, he was interviewed by a live Member Comrnittee and was selected as caretaker in the rnonth of Novembe r. 1998 and accordingly, the respondents were paying salary and other benefits to hirn on par with the sub-staff of the cornpany The .n petitioner was being paid a sum of Rs.6,291l- as gross salary ancl after making deductions, i.e., IT and PF and other deductions. he was

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W.P.No.2()009^{of 2006}

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receiving^{Rs.5,635/- per month at the time of filing of the Writ} Petition^{in 2006 The petitionersubrnits that his salary wasenhanced} fro*^{tirre to trrne alongwitrr other ernployees arrd he was also getting} unironn^{dress along with other ernployees.The petitioner was also} pernritted^{to taketr helperin the guest house subject to a tnaxirnum of} Rs.1,000/-^{per rrontlt with effect from01 01 2001 vide} Ref.No.Pers/H^{Cl1216(P)ll8I2001'CR-52 dt 06 07 2001 The Company} Board^{decided that the remunerationofthecaretakers maybe revised} from^{0 I .0 I .2001 and the pay and allowancesexcludingHRA payable} to Peons^{under the ArnendmentScheme'2000 was madeapplicable to} clerical^{and subordinatestaff' However' they were not entitledto} conveyance^{allowance of Rs 7 5/- per month' lt is the case of the} petitioner^{that the respondent authorities prepared an agreementto} change^{the natttre of the post frotr caretakerto contractor and they} wanted to^{put the petitionerin the fonn of a contractor instead of} regularising^{his services as caretakerthoughsince 1998' the petitioner} was ttninterrtrptedly^{regularlyworking as caretaker'Therefore'he was} eligible^{for' regr'rlarisationas a caretaker'It was his grievancethat} through^{this newagreement'caretaker post was proposed to be} changed^{as a contactor and if done accordingly, he wourd be put to} rrreparable^{loss He placedreliance in the caseof Unionof IndiaVs'} Dharma^{Pal antl othersr} '^{wherein the Governnrentof India was} directed^{to regularisetlte servicesof all thoseworkers who have}

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I Cilil Appcal No'70r'2i96 dt^{20 0lt996 of thc Supremc Couflof lndia}

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W P No 2(Xx)9 ol20{)6

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completed the prescribed period of da1"s viz - 240 day's rn a .v-ear against the existing vacancy applying the rrrle of reservatiotr in the order of seniority in the respective categories rrrentioned rn the scherne and that such regularised ernployees would be entitled to all the regular payment at the scale of pay prescribed by the Cenn'al Governrnent. The petitioner's case is that he was entitled to be regularised in accordance with the above^judgment of the Hon'ble Suprerne Court. Hence, the petitioner filed this Writ Petition

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Learned counsel for the petitioner, Sri P. Venkateswar Rao, while reiterating the averments made by the petitioner in the ',vrit affidavit, has drawn the attention of this Court to page l5 of the u,r'it papers, wherein vide letter dt.04.12.2000. it is cenified that the petitioner is working in the Guest House of the organisation and rvas staying at No.33, Classic Emerald No.8-2-622i lillB-1 & B-3, Road No.l0 (New No.4), Banjara Hills, Hyderabad and that he rnay be issued with required licence. He also referred to page 32 of the writ paper book, which is Fonn No. 164,, wherein the tax was deducted at source under Section 203 of the Income Tax Act and the TDS Circte where annual return under Section 206 was to be delivered was rnentioned as 'lTO Salary Circle'and his name and designation were hrentioned as Caretaker, Guest House, Banjara Hills, Hyderabad. He , also has drawn the attention of this Court to page 37 of the writ papers, wherein the agreement of contract is placed. Hower,er, it is an unsigned agreernent. He also filed a copy of the order of the Hrgh

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W.P.No.20009^{of 2006}

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Court of^{Madras in W.P No 19003 of 2000 in tlre case of New India} Assurance^{Co. Ltd',, Vs' Workman C' Gnanam' wherein under} sirnilar circtttnstauces,^{the Hon'bleMadras High Court has heldthat} the worktnan^{therein is entitled to regularisationof his services'}

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Learned cottnsel^{for the respondents'Sri A' KrishnamRaiu'on} the other hand,^{relied upon the avennentsof the respondent} organisation^{in the counter affidavitand submitted that there was no} post of caretaker^{in the respondent organisation and the companywas} rnaintaining^{a gttest house and the petitionerwas engagedto maintain} the^{guest house and the nomenclaturegiven to the said work was as} caretaker.^{It was submitted that it was not a permanentpost and the} petitioner^{was engagedonly on contractualbasis to maintain the guest} house and^{no pa(icularrecruittnent processwas undertakento call it} He lurtlrer^{strbrnrtted that} as an appointment^{to a pennanentpost} whether^{the petitroner was an employee or llot is a disputed fact which} cannot^{be golle lntolllthese writ proceedingsln support of his} contentions,^{he placed reliarlce upon the iudgrnentsof the Hon'ble} Suprerne^{Cou( in tlte case of l'ogesh MahajanVs' Professor R'C'} Deka, Director,^{All India Instituteof Medical Sciences2 and the} case of Surinder^{Prasad Tiwari Vs' U'P'RajyaKrishi Utpadan} Nlandi^{Parishad and others3' He therelbre prayed for disrnissal of} tlre Writ Petition l

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'(zott):l^{scc z ttl}

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'^{(zooo I scc ot+}

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lTL

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W.P No 2(X)09 of 20()6

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t''

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Having regard to the rival contentrons and the material on record, it is seen that the petitioner was appointed and recognized as a caretaker by the respondent cornpany in the year 1998. Though there is no proof of any selection process being undertaken, it is the case of the petitioner that a Committee interviewed him before appointing him as a caretaker. The respondents have not disputed that the petitioner has been taking care ofthe guest house fbr the past 5 years. It is also undisputed that the petitioner has not signed the document which is in the nature of an agreement or contract. Fufiher, froni the Fom No.16A, it is seen that the TDS has been deducted fiom the monthly payment rnade to the petitioner and the office to which the TDS is to be remitted is rnentioned as'lTO Salary Circle.. All these facts go in t'avour of the petitioner. Fufiher. it is seen that the petitioner is continuing in service by virtue of the interim order of this Court in W.P.M.P.No.25257 of 2006 d1.28.09,2006. The stay vacate petition filed by the respondent colnpany was also dismissed and the petitioner was directed to be continued in service. Therefore, it is clear that the petitioner is continuing in service and though the respondents subrnitted that there is no post of caretaker in the organisation, this Court deems it fit and proper to direct the respondents to regularise the petitioner as a sub-staff or in any such post which canied the same scale in 1998, in which the petitioner was initially appointecl in l99g and grant him all the attendant benefits thereafter, i.e., enhancement of

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W.P.No 20009 oI200

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salary, increments and all other eligible benefits which a regular

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employee would be eligible under law.

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The Writ Petition is accordingly allowed. No costs

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Pending rniscellaneous petitions, if any, in this Writ Petition

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shall stand closed

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SD/.P.PADMANABHA REDDY ASSISTANT REGISTRAR

/iTRUE COPY'

SECTION OFFICER

The Chairman and lt4anaging Director, The Oriental lnsurance Co., lnsurance Company Limited, H.O,Oriental House, A-25127, Asaf Ali Road, New Delhi-110 o02.

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The Chief Regional lVanager, 6-3-871, Snehalatha, P.B.-45, Greenlands Road, Begumpet, Hyderabad-500 01 6.

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J. The Regional lVanager (Personal) 6-3-871, Snehalatha, P.B.45, Greenlands Road, Begumpet, Hyderabad-sO0 01 6.

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The Regronal lVanager, Guest House ln-charge,, 6-3-871 , Snehalatha P.B.-45, Greenlands Road, Begumpet, Hyderabad-s00 016. R2, R3, R4 as Oriental lnsurance Company Limited.

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