Jai Prakash vs State Of Himachal Pradesh & Ors

Chander Bhusan Barowalia, J

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 respondentÂDepartment. The petitioner appeared in the interview and got selected and vide Annexure AÂ3, appointed as

Pump Operator with the respondent Department. The petitioner joined his duties with the respondentÂDepartment on 01.09.1992 and continuously

worked till 23.06.2002. However, in the meantime, the wife of 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 respondentÂDepartment 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 AÂ4) to Assistant

Engineer, Irrigation and Public Health Department, Solan, requesting for his reÂengagement as Pump Operator. Thereafter, vide Annexure AÂ5, the

Superintending Engineer, Irrigation and Public Health Circle, Nahan, wrote a letter to respondent No. 2, requesting that there is no legal bar to reÂ‐

engage the petitioner on daily wage basis, as per instructions of the office, and sought permission to reÂengage him as Pump Operator, considering his

past services. Respondent No. 2, vide Annexure AÂ6, asked Superintendent Engineer, I&PH Circle, Nahan, to do the needful in light of the

instructions, issued vide office letter No. IPHÂESÂIII D.W. Employ/03Â20061Â20161 dated 27.02.2004, for engagement of the petitioner, for 89

days, on daily wage basis. However, neither the petitioner was reÂengaged 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.

In reply to the petition, it is admitted that the petitioner was initially appointed on daily wage basis as Pump Operator with the respondentÂ‐

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 RÂ1,

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 respondentÂDepartment 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 reÂengagement on daily wage basis and

his case was taken up with the higher authorities, but considering that the petitioner having been convicted and undergone imprisonment, was not reÂ‐

engaged on daily wages.

In rejoinder to the reply filed by the respondentsÂ​ State the contents of the petition were reasserted.

Mr. Ramesh Sharma, learned counsel for the petitioner has argued that the petitioner after undergoing imprisonment of one year, made a

representation to the respondentÂDepartment to reÂengage 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 EngineerÂinÂChief (I & PH) Shimla,

vide Annexure AÂ​6.

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 reÂ​engaged in service.

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 reÂ​engage the petitioner on daily wage basis.

The relevant portion of letter dated 07.05.2006 (Annexure AÂ​6) reads as under:

 “From            EngineerÂ​inÂ​Chief,

I&PH Department,

ShimlaÂ​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.

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

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. IPHÂ ESÂIIIÂD.W. Employ/03Â20061Â20161 dt. 27.2.2004 for his

engagement for 89 days.â€​

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 reÂengaged in service. Further, vide Annexure AÂ5, it has been requested that permission

to engage the petitioner on daily wage basis can be considered. In response to Annexure AÂ5, respondent No. 2, vide Annexure AÂ6, 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 reÂengage the petitioner on daily wage basis for a period of 89 days, vide Annexure AÂ6, 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 reÂengage the petitioner on daily wage basis, as per their own

decision (Annexure AÂ​6).

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