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2024 Supreme(Gau) 1439
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
NELSON SAILO, J.
Arabinda Boro S/O Late Deben Boro Bensimari – Appellant
Versus
The Union Of India And 3 Ors. – Respondents
Review.Pet.155 of 2022
Decided on : 12-11-2024
Advocate Appeared:
For the Appellant : MR. P J PHUKAN, MR P P PHUKAN
For the Respondent: DY.S.G.I., MR. S P CHOUDHURY
IMPORTANT POINT
A temporary employee cannot be replaced by another temporary employee; regularization is only possible if the employee is eligible and qualified according to the rules.
Headnote:
(A) Constitution of India - Article 226 - Review Petition - The petitioner challenged his termination from service as a driver under NPTI, claiming he was a temporary employee entitled to regularization. The court found that the petitioner was engaged on a contractual basis and not entitled to the relief sought. (Paras 3, 7, 9, 10, 12)
(B) Employment Law - Temporary vs. Contractual Employment - The court reiterated that a temporary employee cannot be replaced by another temporary employee and must be considered for regularization only if eligible. (Paras 9, 10)
Facts of the case:
The petitioner served as a driver for NPTI from 2009 until his termination in 2013, claiming he was a temporary employee despite being engaged on a contractual basis.
Findings of Court:
The court found that the petitioner was engaged on a contractual basis and had no legitimate grievance regarding his termination.
Issues: The main issues were whether the petitioner was a temporary employee entitled to regularization and if the termination was lawful.
Ratio Decidendi: The court ruled that the petitioner's engagement was contractual, and he was not entitled to the protections afforded to temporary employees.
Result: Review petition dismissed.
JUDGMENT :
Heard Mr. P. J. Phukan, learned counsel for the review petitioner and Mr. S.P. Choudhury, learned counsel for the respondents.
2. This is a review petition filed by the petitioner against the Judgment and Order dated 26/08/2022 passed in WP(C) no. 301/2014. The grounds for filing the instant review petition has been cited mainly in paragraph nos. 4, 5, 6, 7 and 8 of the review petition and the same has been extracted there from for ready perusal.
“4) For that the Petitioner had been serving the NPTI directly in temporary capacity as Driver since 01.05.2009 till his illegal ouster from service on 31.12.2013. It would be worthwhile to mention here that the Respondents have even admitted in their Affidavits concerned that a vehicle ("Travera") was bought by the NPTI for its own use in 2009, engaging the Petitioner after the said purchase and it is really shocking as well as surprising that a Regional Office like the NPTI under the Govt. of India with its ever increasing load of official works (including physical transportations, keeping in view the prevailing safety and security aspects) has not taken any initiative during the long spell of time for a regular sanctioned post of Driver, in tune with the Hon'ble Apex Court's Judgment in Piara Singh.
5) For that the Respondents have themselves admitted in their Affidavit concerned regarding the official quarter (wherein the Petitioner has stayed along with his family) that the Petitioner "was helped to share a shelter purely on temporary phase" which has been "in fact occupied by the petitioner".
6) For that by the impugned Memorandum dated 31.12.2013, the NPTI authority has sought to replace the Petitioner (serving in a temporary capacity) by a contractual employee engaged through a outside agency (as could be easily inferred from a perusal of the Financial Bid document for man-power service) and consequently the Petitioner has not been sought to be replaced by a regular employee, which is in total contravention of the Hon'ble Apex Court's various Judgments in this regard including that of Piara Singh.
7) For that the nature of the Petitioner's 2nd stint of engagement since 01.05.2009 has not been contractual as sought to be projected by the Respondents, with some misleading statements in their Affidavits. If the veil is withdrawn and facts are carefully examined, it will be crystal clear that the Petitioner had been serving the NPTI till his illegal termination as a temporary employee of its own, with a newly purchased Travera vehicle and an official quarter to reside with his family (which are admitted facts as reflected in the Affidavits concerned as well as in the relevant Annexures). Further, the Hon'ble Apex Court's Judgment in Somesh Thapliyal is also clear about the bargaining power vested with the employer and the prayer in the Writ Petition mainly revolved around the Petitioner's non-ouster and continuation in service as a Driver under the NPTI, NER.
8) For that in the appertaining factual matrix regarding the nature of the Petitioner's engagement in the NPTI, the issuance of 15 days' prior notice before his termination was of a vital requirement in view of the Hon'ble Apex Court and this Hon'ble High Court's views in several cases including the cited cases reflected in the Judgment and Order dated 26.08.2022.”
3. Referring to the grounds of the review petition Mr. P. J. Phukan, learned counsel for the review petitioner submits that the petitioner was engaged no doubt on contract basis but his employment having subsisted for a fairly long period of time, he is in the status of a temporary employee and therefore the respondents ought to have not terminated him from service and instead consider him for regularization. In support of his submission the learned counsel has relied upon the cases of (i) Somesh Thapliyal V. HNB Garhwal University (2021) 10 SCC 116 (ii) Haryana V. Piara Singh (1992) 4 SCC 118 (iii) V.P. Ahuja v. State of Punjab and others (2000) 3 SCC 239 (iv)
