CWP No.2609 of 2010.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.2609 of 2010 Date of Decision: 14.10.2010 **** Rohtash Kanwar ... Petitioner VS. Life Insurance Corp. of India & Ors. …Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. YP Malik, Advocate for the petitioner Mr. BR Mahajan, Advocate for the respondents ***** SURYA KANT J. (ORAL) (1). The petitioner seeks quashing of the order dated 18.08.2009 and 04.01.2010 (Annexure P19 & P21, respectively) whereby his claim for regularization of service has been turned down primarily on the ground that the petitioner was “engaged on contract basis as Hostel Attendant at STC Ambala City as per terms and conditions of contract letter…….”. The petitioner on the other hand seeks regularization in the light of the decision of this Court in Jit Singh v. LIC & Anr. (CWP No.8948 of 1994) rendered on 30.05.2001 (Annexure P14) which has already attained finality after the dismissal of the Letter CWP No.2609 of 2010.doc - 2 – Patents Appeal filed before this Court as well as SLP before the Hon’ble Apex Court preferred by the respondent-Corporation. (2). In order to appreciate the controversy it may be mentioned that the petitioner was appointed/engaged as a Caretaker/Chowkidar vide letter dated 05.11.1992 (Annexure P1) issued by Principal-cum-Sub Divisional Manager, LIC Sales Training Centre at Ambala City on the following terms & conditions:- 1. “The period of contract in the first instance will be upto 3 months subject to renewal at the end of 3 months. 2. The consolidated amount of Rs.922-40 paise per month or amount fixed by DC Ambala will be payable to you as contractual monthly amount. The payment of this contractual monthly amount will be made to you in the first week of the following month. 3. You will be required to contact the Principal, STC daily. It would be your exclusive responsibility to attend the ADO’s hostel at all times. You will also make arrangements to depute some other dependable and responsible person to the ADO’s hostel in your absence as and when you would be compelled due to certain unavoidable circumstances not able to attend the ADO’s hostel. The necessary suitable arrangement for deputing such a person will be made by you at your own cost. 4. You will attend to all the Guests that may come to the ADO’s Hostel at any time. 5. You will keep the Hostel in neat and tidy condition and will take all precautions for safety of articles CWP No.2609 of 2010.doc - 3 – placed in the ADO’s hostel. In the event of any damage or loss of articles, the necessary amount will be deducted from your monthly contractual amount. 6. You will be required to maintain register for mates as directed by Principal STC. 7. The LIC authorities reserve the right to terminate the contract at their discretion at any time without assigning any reason thereof. 8. If you aggreable to the above terms and conditions, please report for duty immediately at the Sales Training Centre, Ambala City.” (3). Clause 7 of the appointment letter further provided as follows:- 7. The LIC authorities reserve the right to terminate the contract at their discretion at any time without assigning any reason thereof. (4). There is no denial to the fact that the afore-stated appointment/arrangement was extended from time to time and the petitioner is continuously working without any break since November 1992. In a series of letters, some of which are placed on record, the respondents themselves have mentioned the nomenclature of the post held by the petitioner as a “Caretaker” in the STC Ambala City. CWP No.2609 of 2010.doc - 4 – (5). The question that arises for consideration is as to whether or not the petitioner, having served the Corporation for a long period of 18 years is entitled for regularization of his services? (6). The petitioner had earlier filed CWP No.4794 of 2009 seeking a direction for regularization of his services and the same was disposed of by this Court with a direction to the respondents to consider his representation made in that regard. The said representation has been turned down by the respondents after observing that the petitioner has been engaged on ‘contractual basis’ and the Rules framed by the LIC to govern service conditions of the employees which are statutory in nature, “do not permit regularization of contractual/temporary engagements”. (7). Somewhat similar issue came up for consideration before this Court in Jit Singh’s case (supra) pertaining to a Chowkidar-cum-Caretaker appointed at Panipat w.e.f. 03.08.1994 on Daily-wages as per the rates fixed by the Deputy Commissioner, Panipat. He approached this Court after completion of 10 years of service to direct the respondents to regularize his services. His writ petition was allowed CWP No.2609 of 2010.doc - 5 – vide decision dated 30.05.2001 (Annexure P14) after observing as follows:- “A short point which requires determination by this Court is whether directions should be given to the respondents to regularize the services of the petitioner or not. This stands established from the record especially from Annexure P1 that the petitioner was appointed as temporary Chowkidar/Caretaker w.e.f. 3rd August, 1984 and till today, he is serving. There is no indication in this letter that the petitioner was working on contract basis. Be that as it may, assuming for the sake of arguments that the petitioner was working on contract basis, question still would be whether it is voidable for this Court to give directions to the respondents to regularize the services of the petitioner, who joined the service of the Corporation as far back as in the year 1984. Sixteen long years have expired and the petitioner is contributing his might in order to look after the guests of the guest house of the Corporation. The guests may come at any time during the day. Some time the guest go to the Guest House during the odd hours and the petitioner is the sole caretaker of the Guest House and in this manner it can be safely inferred that he is performing his duty without any security of service. This is against the very object of the Constitution. I am not in a position to subscribe to the argument of Mr. Mahajan that the appointment of the petitioner was purely contractual or for a limited period. The correspondence which had transpired between the Senior Branch Manager and the Senior Divisional Manager do indicate that it was always desired to convert this vacancy into a permanent one and need was always highlighted in these correspondents. The petitioner at no point of time was discharged from the service and there is no break in his service. There are other Chowkidar/Caretaker functioning in the Corporation. It is a big Project and one of the highest CWP No.2609 of 2010.doc - 6 – undertakings of the Government of India. The petitioner who is in service for the last sixteen years cannot be allowed to hand in balance. Security of service is the desire and wish of the employee and the petitioner had committed no wrong when he has approached this Court by making a prayer that his services should be regularized by the Corporation as he has been discharging his duties honestly and without any complaint.” (8). The Letter Patents Appeal bearing No.253 of 2001 preferred by LIC was dismissed by this Court, followed by Civil Appeal No.4690 of 2002 which too met with the same fate and was dismissed by Hon’ble Supreme Court vide order dated April 1, 2008 (Annexure P15) after observing that the respondent (Jit Singh) at that time had served for more than 24 years. (9). In the instant case also, the petitioner has admittedly served the respondents for about 18 years to their entire satisfaction. The only plea taken by the respondents is that the petitioner was appointed on contractual basis only and he cannot be termed as an ad hoc employee to be entitled for regularization under the Scheme. (10). Having heard learned counsel for the parties at some length, I do not find any substance in the above- noticed contention raised on behalf of the respondents. The petitioner was engaged by the CWP No.2609 of 2010.doc - 7 – respondents admittedly to perform the duties of Caretaker/Chowkidar. The appointment letter was issued by none else than the Senior Divisional Manager of LIC; the wages have also been paid to the petitioner by the LIC. The petitioner exclusively worked as a Chowkidar/Caretaker of the Training Complex of LIC only. It is quite strange that notwithstanding these glaring facts, the respondents have come up with the plea that the petitioner is not their ‘employee’ without answering as to whom he has been serving for all these 18 years? (11). The heavy reliance placed by the respondents upon the ‘terms and conditions’ of appointment also does not improve their case. Suffice it to say that these terms and conditions are unilateral in nature and the petitioner who was unemployed and need of a source of livelihood was in position to bargain with the respondents. (12). In my considered view, the mitigating facts and circumstances; hardship; equitable consideration and the respondents being an organ of the State, cannot be permitted to promote hire and fire policy. The denial of same treatment to the petitioner as has been extended to a similarly-situated employee, CWP No.2609 of 2010.doc - 8 – namely, Jit Singh would amount to an act of discrimination. (13). For the reasons afore-stated, the writ petition is allowed; the respondents are directed to consider the petitioner’s claim for regularization of his services and if found eligible, issue the appropriate orders within a period of three months from the date of receipt of a certified copy of this order. (14). Ordered accordingly. Dasti. 14.10.2010 vishal shonkar (SURYA KANT) JUDGE