Rajinder Bindra vs State of Himachal Pradesh

Deepak Gupta, J.—These two petitions are being disposed of by a common judgement since the petitioner is common in both the cases. Even though the reliefs sought in both the cases are different, to avoid repetition of facts both the petitions are being disposed of together. The petitioner is employed in the Agriculture Department of the State of Himachal Pradesh. From the documents filed on record it is apparent that the petitioner has been litigating with the department right from 1990 and has filed a large number of petitions. Every employee is entitled to approach the appropriate Court/forum when he feels that justice has not been done with him. Therefore, the mere fact that the petitioner has approached the Court in a number of cases may by itself not be sufficient to throw him out and would not be ground to reject his petition. However, at the same time, if this Court comes to the conclusion that the petitioner has been coming to the Court repeatedly on the same cause of action then the Court may be inclined not to grant relief to the petitioner.

It is not necessary to give the history of all the cases but it would be pertinent to mention that when the petitioner was working as daily waged worker his services were terminated on 30.06.1990 and thereafter the petitioner filed an original application before the then H.P. State Administrative Tribunal which was finally allowed on the ground that since due to interim order dated 1.8.1990 the petitioner had been working as daily paid casual labourer he was entitled to regularization in a phased manner on the basis of seniority. The petitioner then filed a contempt petition in which it was ordered that he be engaged as daily rated labourer. Thereafter in 1997 the petitioner filed another petition that he was discharging the duties of Assistant Photographer and Photographer but had not been paid wages for this purpose. He claimed salaries of these posts on the basis of equal pay for equal work. This petition was also allowed in his favour on 6.9.2010. Thereafter the petitioner filed O.A No. 470 of 1998 claiming regularization w.e.f. 31.12.1997 on the ground that other employee similarly situated to him had been given benefit of same medical certificates. A direction was issued to the department to consider the medical certificates given by the petitioner.

The petitioner filed O.A. No. 3184 of 2001 before the H.P. State Administrative Tribunal in which he prayed for the grant of the following reliefs:-

7(a) That the respondents be directed to consider the medical certificates submitted by the applicant for the period for which he remained under treatment for purposes of seniority.

7(b) Direct the respondents to pay wages for the period for which the applicant remained under treatment as is being paid to the similarly situate his counterparts.

This petition was dismissed by a learned Single Judge of this Court, who held as follows:-

He submitted the medical certificates in the year, 1998. In case the petitioner was ill, he ought to have submitted the medical certificates at the time when he fell ill. No justification has been given by the petitioner why he could not supply the medical certificates in 1992, 1993, 1994 or at the most in 1995. It has come in the reply that the dates for which the petitioner have submitted the medical certificates, he was very much present, i.e., 08.04.1993, 12.01.1994, 13.01.1994, 17.01.1994, 20.01.1994, 27.01.1994 to 29.01.1994 and 31.01.1994, 13.07.1992, 15.07.1992, 16.07.1992, 22.07.1992, 27.07.1992, 01.08.1992, 04.08.1992 and 07.08.1992 during the years-1992-1994. It is apparent that these medical certificates have been obtained by the petitioner just to cover up the shortage of 240 days in 1992, 1993 and 1994. He had worked for 139 days in 1992, 8 days in 1993 and 176 days in 1994. He has submitted the medical certificates only in 1998. In view of this, the respondent department was right in rejecting the medical certificates submitted by the petitioner belatedly.

The petitioner had only worked for 139 days in 1992, 8 days in 1993 and 176 days in 1994. The medical certificates were submitted by him in 1998 and therefore, the department was right in rejecting the medical certificates submitted by the petitioner belated. It is not disputed that this judgement delivered on 8.12.2010 by this Court and has attained finality. It would be pertinent to mention that in the meantime the petitioner had also filed original applications being O.A. Nos. (D) 358 of 2006, (D) 441 of 2006, (D) 288 of 2007 and (D) 485 of 2007 in which similar claims were raised. In these petitions either he had challenged the grant of benefits on the basis of medical certificates given to his colleagues or that he be given regularization on similar basis. All these cases were directed to be treated as representation except O.A. No. 441 of 2006, which is stated to be still pending. CWP No. 2841 of 2010.

In this petition the petitioner prayed for the grant of the following reliefs:-

(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 20.05.2010 being Annexure P-8 of the writ petition, as unconstitutional and illegal and contrary to the law as the name of the petitioner has not been sought for the purpose of consideration for promotion;

(b) to issue a writ of mandamus, appropriate wirt, order or direction in nature thereof, directing the respondent department to grant work charge status to the petitioner w.e.f. 1.1.1997 with all consequential benefits including arrear and interest thereon 18% p.a.

Before being taken the relief (a) the case of the petitioner for grant of relief (b) will have to be taken up because if relief (b) is granted in his favour he will be eligible for regularization/promotion.

The petitioner in his writ petition claims that he should be regularized w.e.f. 1997 and should be given benefit of medical certificates like his colleagues. Though the petitioner made reference to a number of other judgements/orders delivered by the Tribunal he conveniently did not make reference to the judgement of Hon''ble Mr. Justice Rajiv Sharma delivered in O.A. No.3184 of 2001 (CWP(T) No. 8133 of 2008) decided on 8.12.2010 whereby this relief was specifically denied to the petitioner. The petitioner in para 12 of the writ petition has made the following averments:-

That the petitioner has not filed any other writ petition on same or similar grounds either before this Hon''ble Court or before the Supreme Court of India.

This averment is totally false because the petitioner had filed a large number of petitions claiming the same relief but O.A. No. 3184 of 2001 has been specifically dismissed. The claim of the petitioner that he should be regularized w.e.f. 1997 already stood rejected and therefore this relief cannot now be granted to him. He is also guilty of mis-stating facts. Therefore, the petition is dismissed with costs assessed at Rs.5,000/-.

CWP No. 18 of 2011:

By means of this petition the petitioner has challenged the order dated 29.11.2010 annexure P-8 whereby he has been transferred from Palampur to Nagrota Surian. The main grievance of the petitioner is that he has been transferred because of the fact that he has repeatedly been filing the petitions and this annoyed his superiors. Again he has raised the plea that though the medical certificates produced by other employees have been accepted while covering up the deficiency period in making up 240 days but in his case such medical certificates have not been relied upon. He has also made allegation that must-rolls have been fabricated in every case and therefore, he was compelled to file a complaint before the State Vigilance and Anti Corruption Bureau and also take course to criminal proceedings which led to registration of an F.I.R. against other individuals. According to him after he made representation to the Hon''ble Chief Minister and Hon''ble Agriculture Minister the officers got annoyed and he was transferred from the office of Deputy Director of Agriculture, Palampur to Subject Matter Specialist, Nagrota Surian, District Kangra. Normally, this Court does not favour the transfer of class8 IV employees, from one place to the other but in this case I find that the transfer has been made on administrative grounds. The allegation of the respondent is that the petitioner had submitted false medical certificates to get benefit of the same for covering up the deficiency of 240 days in the years 1992, 1993 and 1994. These certificates as held by the learned Single Judge were filed only in the year 1998. The learned Single Judge has also not accepted these certificates to be correct. The investigating agency in this case has requested that the petitioner be shifted outside Palampur since he may influence the investigation. At this stage, I am not going into the question whether the certificates are false or not because that will have to be decided in criminal proceedings against the petitioner. However, when criminal proceedings are lodged the respondents has a right to take into consideration the request of the investigating agency. This is a valid administrative ground. The learned Single Judge of this Court in his judgement dated 8.12.2010 had clearly held that the petitioner had obtained the medical certificates just to cover up the shortage of 240 days in the years 1992, 1993 and 1994 and these certificates cannot be relied upon. Therefore, it cannot be said that the transfer is arbitrary.

Sh. Vikas Bhardwaj, learned counsel for the petitioner has urged that even though criminal cases are pending against other employees but they have not been transferred. It would be pertinent to mention that those criminal cases were not lodged by the State but on the complaint of the petitioner the Sub Judge ordered registration of the F.I.R. Those cases stand on a different footing.

I, therefore, find no merit in this petition, which is accordingly rejected. The stay order is vacated and the petitioner is directed to join at Nagrota Surian within one week from today. No costs. In view of the above discussion CWP No.2841 of 2010 is dismissed with costs assessed at Rs.5000/- and CWP No. 18 of 2011 is dismissed with no order as to costs.