Abhijit Barua vs State Of Tripura And Ors

[1] The petitioner seeks regularization in Government service from the month of September, 2011 in Group - C post upon completion of 10(ten) years of Service as Daily Rated Worker.

[2] Brief facts are as under :

According to the petitioner, he was engaged as a Daily Rated Worker ('DRW' for short) in the Public Works Department, Government of Tripura, in the year 2001. On such a basis, he has been rendering continuous full-time duties since then. Initially, he was paid @ Rs.50/-per day which remuneration was revised from time to time. The petitioner has produced several documents in order to contend that his engagement was as a DRW. For example, the petitioner relies on a letter dated 25th June, 2004 written by the Under Secretary, Finance Department of Government of Tripura to the Treasury Officer along with which a list of Casual/Daily Rated/Part Time workers in different departments of the Government was attached. In such a list, the name of the petitioner figures at Sl. No.151. He is described as a DRW, working since 2001 and being paid remuneration @ Rs.50/- per day. The petitioner has also produced another letter dated 25th January, 2011 written by the Water Resource Division of Kailashahar where he was engaged along with which annexure containing particulars of DRWs/Casual Workers/Part Time Workers was annexed. In such a list, the petitioner is shown as DRW engaged w.e.f. September, 2001 and for which the concurrence of the Finance Department was granted on 25th June, 2005 (which I am informed is a typographical error, the correct date being 25th June, 2004). This document also states that the petitioner is paid a lump sum Rs.3,876/- per month for such work. The petitioner has also produced a letter dated 27th November, 2012 written by the Water Resource Division of Kailashahar stating that the petitioner has been engaged as a DRW since September, 2001. The letter also refers to sending copies of related papers and documents of payments to the petitioner. However, no such documents are produced along with the said letter before this Court. The petitioner also relies on a letter dated 11th December, 2015 written by the Deputy Secretary, Finance Department, which contains information on Daily Rated/Casual/Contingent Workers engaged by the said department i.e. PWD (Water Resources). The name of petitioner figures in the said list is shown to be working since September, 2001 for which concurrence of the Finance Department was issued on 25th June, 2005. His consolidated monthly salary is shown to be Rs.4,539/-. The petitioner has produced at Annexure - 8 a copy of the letter dated 20th March, 2013 written by the Chief Engineer, PWD(WR) under which the petitioner along with other workers have been brought over to the DRW establishment from Part Time Workers w.e.f. 1st December, 2012. According to the petitioner, this was a gross injustice done to him since on the basis of his continuous engagement as DRW since September 2001, the petitioner was entitled to be regularized in Government service as per the Government scheme for regularization issued under a memorandum dated 21st January, 2009.

[3] Petitioner had previously approached this Court by filing WP(C) No.1353/2016 with the same grievances. His petition came to be disposed of by a judgment dated 3rd November, 2017 in which the learned Single Judge made following observations:

"9. On appreciation of the submission advanced by the counsel for the parties and averments of the petitioner and the respondents, this Court is really in quandary how the government documents can be so conflicting leaving a person flabbergasted because nothing can be churned out definitely. But from the basic documents as produced by the petitioner it appears that consistently the petitioner has been shown as the full time DRW and he was getting wage against that status. Even the Executive Engineer who had appointed the petitioner had certified the petitioner as the DRW from September, 2001 and as such the petitioner is otherwise covered by the policy as expounded by the memorandum dated 21.01.2009.

Be that as it may, this Court is of the view that the respondents shall make a fresh inquiry about the status of the petitioner including whether the petitioner was discharging the duties of the Group-D employee or Group-C employee as DRW or as part-time worker. Such inquiry shall be completed within a period of one month from the day when the petitioner shall submit a copy of this order. If it is found on appreciation of the documents and the official records that the petitioner was working as DRW, Group-C or Group-D and had completed 10 years of service as claimed, he shall be regularized in terms of the memorandum dated 21.01.2009 within a period of three months therefrom. It is expected that the respondents shall fairly act and shall not unnecessarily deprive the petitioner from getting the security of his engagement. It is made clear that in terms of the memorandum dated 21.01.2009 the petitioner shall get all service and financial benefits.

It is further stated that at the time of inquiry the petitioner shall be provided with reasonable opportunity to place his documents before the Inquiring Authority as would be constituted by the appointing authority for the above purpose.

In terms thereof, this petition stands allowed as indicated above. There shall be no order as to costs."

[4] Pursuant to the said decision, the department carried out a detailed inquiry into the status of the petitioner. On the basis of inquiry report, the respondents passed a fresh order dismissing the claim of the petitioner on the ground that as per the inquiry report, there was no evidence of the petitioner being engaged as a DRW w.e.f September, 2001. The impugned communication dated 25th July, 2018 does not contain the full inquiry report. Such an inquiry report is produced by the respondents along with the reply dated 26th February, 2019. In the report of the inquiry dated 20th June 2018, following conclusions have been arrived:

"Scrutiny & Findings :-

All the records has been scrutinized in details. After compilation of documents collected from both the parties' i.e the petitioner and the EE/TA to SE, WR Deptt., findings are listed below :-

EE/WR/KLs & TA to SE, Kumarghat mentioned through various letters addressed to the CE,(WR) that Sri Abhijit Barua, was working as DRW with effect from September 2001. But in respect of payment hand receipt vouchers submitted by them, it does not resembles to that of meant for DRW employee payment mode. But similar to something like payment made to contractual/part-time worker. The initial hand receipt voucher for the month of Sept., 2001, the designation mentioned as part time worker, 4(four) hours which does not establish the petitioner was working as DRW since Sept, 2011.

Moreover, in the most of the hand receipt vouchers the designation of the employee was not mentioned. Which does not indicate his designation/category of employee.

However, neither the officials nor the Sri Barua, petitioner could be able to produce any authentic payment record in support of DRW employee.

It appears that the hand receipt payment vouchers has not been submitted continuously right from Sept.2001. There are discontinuation of payment vouchers with the plea that some vouchers are missing/not available in office record, as reported by the E.E.WR. Division-VI, Kailashahar & TA to S.E, Kumarghat as well as Sri Barua, petitioner verbally. (Photo copies of payment hand receipt vouchers with other documents are enclosed). Again in respect of "Engagement letter" as DRW, the EE/WR/KLS/Div.-VI/TA to SE/WR Circle -II, Kgt. As well as Sri Barua was asked to submit. But nobody was able to submit the same document.

Finally in my view the documents/records as presently available are not sufficient enough to establish that Sri Abhijit Barua, was engaged as DRW w.e.f. Sept'2001.

-Sd- -Sd-

( Sri T. Chakma ) Member Enquiry Committee

( Sri A. Majumder ) Chairman Enquiry Committee

[5] On the basis of such documents on record, learned counsel Mr. Arijit Bhowmik vehemently contended that the petitioner was working as a DRW right from September, 2001 for which concurrence of the Finance Department was granted in the year 2004. Upon completion of 10(ten) years of service, the petitioner ought to have been regularized as per the Government scheme. There are voluminous documents showing that the department itself concedes the position that the petitioner was engaged as a DRW right from September, 2001. The inquiry report suffers from major lacunae since the entire burden of establishing that the petitioner was engaged as a DRW has been thrown on the petitioner, completely discarding the correspondence from the immediate unit where the petitioner was posted showing that he was engaged as a DRW. The petitioner relies on a decision of this Court dated 12th February, 2020 in WP(C) No.910/2019 in case of Shri Amalendu Chakma Vs. The State of Tripura and Ors..

[6] On the other hand, learned Additional Government Advocate Mr. M Debbarma opposed the petition contending that there were no documents suggesting that the petitioner was engaged as a DRW since the year 2001. He has been brought over to the said establishment only in the year 2012. The petitioner, therefore, cannot get the benefit of regularization as per the scheme of 2009. Further, neither the petitioner nor the unit where he was engaged produced any documents of payments to the petitioner as a DRW.

[7] Having heard learned counsel for the parties we may recall that previously the petitioner had approached the Court to the same grievances. The learned Single Judge found the evidence appearing from the documents inconclusive and, therefore, directed a detailed inquiry to be conducted. Before the inquiry authority also, neither the petitioner nor the petitioner's unit where he was posted could produce any evidence of payment as DRW. It is true that in some other documents the Water Resource Division where the petitioner was posted referred to the petitioner as engaged as DRW. However, the Finance Department needed to verify such details which could be done only with contemporaneous materials. In this context, I find it rather strange that the petitioner could not produce a single receipt of monthly payment showing that he was remunerated at the rate prevailing for the DRWs. If the petitioner had been engaged as a DRW since September, 2001 continuously, it is rather unusual that he was unable to produce a single receipt of payment in support of such a claim. The petitioner has produced several documents along with the petition but has not produced a single document of payment of remuneration. Even more surprising and curious is the fact that the petitioner's engaging unit has also not produced a single document supporting the theory that the petitioner was engaged as a DRW. The reason cited is that the documents were missing. It is surprising that for years together the unit which claims to have engaged the petitioner as a DRW and has produced the correspondence for such purpose, when called upon by the inquiry authority appointed by this Court, did not produce a single month's receipt/vouchers or payment proof citing the reason that the documents were missing.

[8] Under the circumstances, I do not find that the inquiry authority has committed any error in the report which is the basis for rejecting the petitioner's claim for regularization. It is the highly disputed question of fact and findings and conclusions of the inquiry authority do not suffer from perversity. In exercise of writ jurisdiction, I do not find the petitioner has made out any case for interference.

[9] The case cited by the petitioner in case of Shri Amalendu Chakma(supra) was the reverse situation where the petitioner had produced voluminous and reliable evidence of being remunerated at the rate of DRW but who was described in the departmental documents as Part Time Worker. It was in such background that the petition was allowed. The said decision, therefore, will not be of any assistance to the petitioner.

[10] In the result, petition is dismissed. Pending application(s), if any, also stands disposed of.