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2000 DIGILAW 146 (HP)

AMIT BHARDWAJ v. H. P. S. E. B.

2000-06-26

K.C.SOOD, KAMLESH SHARMA

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JUDGMENT Kamlesh Sharma, J: - In this writ petition the petitioner is aggrieved by order dated 15.9.1998 passed by the Himachal Pradesh Administrative Tribunal whereby his Original Application No. 1767/96 has been dismissed having no merit. His Original Application was against the rejection of his representation by the respondent Board vide order dated 17.10.1996 (Annexure P-3). 2. This case has a chequered background. In short it is that the petitioner who holds Diploma of Tracer-cum-Draftsman (Civil) was engaged as Junior Draftsman or daily wage basis against vacancy in exigency of work and on compassionate grounds for a period of 89 days, at the rate prescribed by the Board vide letter dated 16.12.1994 (Annexure P-3 to CWP No. 2014 of 1995). He joined on 22.12.1994 and on 20.3.1995 he was told that his services were no longer required w.e.f. 20.3.1995. Feeling aggrieved, he filed CWP No. 2014 of 1995, which came for admission on 19.10.1995 before Division Bench of this Court. Besides issuing notice for rule nisi, interim directions were issued to the respondents to allow the petitioner to continue in the same post, which he was holding. After reply affidavit and rejoinder were exchanged, the writ petition was finally disposed of by order dated 30.4.1996 in the following terms:- "The writ petitioner was appointed on compassionate ground on daily wage basis as draftsman on 16.12.1994 but his services were terminated on 21.3.1995. We dispose of the present petition with direction that the petitioner shall file a representation before the Executive Engineer, Renuka Investigation Division, H.P. SEB, at Dadahu, Sirmur District within one month from today, which shall be considered and disposed of within one month thereafter by a speaking order. Till the representation is disposed of, the interim order shall continue, If aggrieved, the petitioner may approah this Court again. In view of the above, the petition is closed and disposed." Further, by order dated 10.7.1996 passed in CMP No. 2501/96 time for deciding the representation was extended for three months from the date of the order and it was pointed out that, "till the decision of the representation the petitioner will not be dis-engaged." 3. The representation was decided by the Executive Engineer, Renuka Investigation Division, HPSEB, Dadahu, Sirmaur vide his order dated 17.10.1996 (Annexure P-3). The representation was decided by the Executive Engineer, Renuka Investigation Division, HPSEB, Dadahu, Sirmaur vide his order dated 17.10.1996 (Annexure P-3). But before deciding the representation the Executive Engineer wrote letter dated 10.9.1996 (Annexure P-l) to Secretary of the Board, inter alia that, "Further to this, it is submitted that the petition CWP No. 2014/95 titled Amit Bhardwaj versus HPSEB, may kindly be got decided, since this office has no objection for the appointment of petitioner (Sh. Amit Bhardwaj) against the existing vacancy." The executive Engineer had further in his letter dated 25.9.1996 (Annexure P-2) to the Superintending Engineer, Renuka Construction Circle, HPSEB, Rohru given the details of the periods of engagement of the petitioner as under: - "No. HPSEB (SECTT)/343-l/94(D/W). 1. -do- 134256-59 dt. 16.12.94 for 89 days 2. -do- 109332-36 dt. 27.10.95 for 89 days 3. -do- 20540-44 dt. 30.1.96 for 89 days 4. -do- 52237-41 dt. 1.5.96 for 68 days 5. -do- 76131-35 dt. 2.7.96 for 68 days 6. -do- 100113-17 dt. 5.9.96 for 30 days" He also sought guidance for deciding the representation. From Office Order dated 17.10.1996 (Annexure P-3) it is clear that the representation was rejected on the ground that, "the petitioner was engaged for less than 90 days on contract basis in the exigencies of works and on administrative grounds" which no longer existed. Another ground for disengaging the petitioner, as given, was shortage of funds. However, it was ordered that since the petitioner had worked for 240 days in a calendar year, therefore, one months pay, as required under the provisions of the Industrial Disputes Act, 1947 (hereinafter called the Act) was allowed. 4. The case set up by the petitioner in the writ petition as well as in the arguments addressed by his learned counsel is that since the petitioner had worked for more than 240 days in a calendar year his services could not be dis-engaged, which amounts to retrenchment without giving him notice for one month or wages in lieu of notice and also the retrenchment compensation provided under Section 25-F of the Act. Referring to the letter of the Executive Engineer (Annexure P-3) the learned counsel has also urged that the Executive Engineer was not right in rejecting the representation on the ground that there was either no work or no funds available to continue the engagement of the petitioner. 5. Referring to the letter of the Executive Engineer (Annexure P-3) the learned counsel has also urged that the Executive Engineer was not right in rejecting the representation on the ground that there was either no work or no funds available to continue the engagement of the petitioner. 5. On the other hand, the stand of the respondent Board in its reply filed on the affidavit of its Secretary Shri J.S. Rana is that, "the petitioner was initially engaged as daily waged Junior Draftsman for 89 days on contract basis and his contract continued to be renewed on different spells for a further period of 89 days from time to time in the exigency of work as well as on administrative grounds. Lateron after the completion of the contract his services were disengaged on 20.3.1995 on administrative grounds and due to shortage of work/funds." Further case of the respondent Board is that the representation of the petitioner was rejected and he was disengaged as there was no exigency of work and funds were not available to continue the work. As per the responded Board the provisions of Section 25-F of the Act have been duly complied with. It is submitted that, "the compensation amount was calculated immediately on his disengagement and he was time and again intimated through special messenger to receive the retrenchment compensation, but he did not receive the amount as per Annexure RA3 annexed with the reply to original O.A., nor any objection was raised thereto. Further a cheque pertaining to compensation amount was also sent through office peon of the replying respondent No.2 vide RA4 annexed with original O.A. and again by a Regd. post on his home address but received back on 5.12.9b vide RA-5 annexed with O.A. Thus the replying respondents have made sincere efforts to make payment but the petitioner knowingly/purposely evaded receipt of payment with the intention of making a false claim of re- engagement." 6. In this rejoinder the petitioner has reiterated the averments made in the writ petition and denied the contrary stated in the reply- affidavit. It is submitted that the petitioner was never served with notice under Section 25-F of the Act and was not paid any retrenchment compensation at the time of his retrenchment and a cheque of salary sent to the petitioner lateron cannot be considered as compensation. 7. It is submitted that the petitioner was never served with notice under Section 25-F of the Act and was not paid any retrenchment compensation at the time of his retrenchment and a cheque of salary sent to the petitioner lateron cannot be considered as compensation. 7. We have heard learned counsel for the parties and gone through the record. While assailing the impugned order of the Tribunal the learned counsel for the petitioner has reiterated that without giving notice and paying compensation as required under Section 25-F of the Act the dis-engagement of the petitioner was bad and he is required to be re- engaged with consequential relief of past wages and seniority as daily wage Junior Draftsman. On the contrary, learned counsel appearing for the respondent Board has supported the impugned order of the Tribunal and has referred to Standing Order No. 14 of the Standing Orders of the Board to urge that the case of the petitioner is not covered under the Act and having been engaged for a specified period he was not required to be given any notice. The learned counsel for the respondent Board has also cited judgment of the Supreme Court in U.P. State Cooperative Land Development Bank Ltd., v. Taz Mulk Ansari and others, 1994 Supp. (2) SCC 745. 8. After giving our best consideration to the respective contentions raised by learned counsel for the parties we find no merit in this writ petition. We may straighten the facts emerging from the record that initial appointment of the petitioner as Junior Draftsman on daily wages was in exigency of work and on compassionate grounds for a period of 89 days, as stated in letter dated 16.12.1994 written by the Secretary of the Board to the Executive Engineer of the concerned Division. On the expiry of the period of 89 days on 21.3.1995 the petitioner was told by the Executive engineer, though orally, that his services were no longer required. Feeling aggrieved, the petitioner had filed CWP No. 2014 of 1995 and his further engagement up to 4.10.1996, as stated in letter dated 25.9.1996 (Annexure P-2), was under the interim orders of this Court passed in CMP No. 3757/95 in CWP No. 2014/95 and CMPNo. 2501/96. Feeling aggrieved, the petitioner had filed CWP No. 2014 of 1995 and his further engagement up to 4.10.1996, as stated in letter dated 25.9.1996 (Annexure P-2), was under the interim orders of this Court passed in CMP No. 3757/95 in CWP No. 2014/95 and CMPNo. 2501/96. As such, if the petitioner has completed more than 240 days, in fact 328 days, in a year starting w.e.f. 27.10.1995 to 4.10.1996, it was under the interim orders passed in the writ petition and the petitioner cannot claim benefit of it for urging that his dis-engagement amounts to retrenchment and it is in violation of Seciton 25-F of the Act, more so, in view of the consistent stand of the respondent Board that after the completion of first tenure of 89 days the petitioner was dis-engaged for shortage of funds and also for the reason that there was no exigency of work or administrative ground to continue engaging the petitioner on daily wages. No doubt, in letter dated 10.9.96 (Annexure P-1) the Executive Engineer has given no objection for the appointment of the petitioner against the existing vacancy in view of the writ petition CWP No. 2014/95 filed by the petitioner but it is not enough to be the consistent stand of the respondent Board as given in its reply- affidavit, which is substantiated by its record and the fact that no person has been engaged in place of the petitioner. Therefore, we hold that the petitioner had not in a year, competed 240 days in the regular course of engagement and his dis-engagement was not in violation of Section 25-F of the Act. 9. However, we find that the respondent Board has been gracious enough to take into consideration the period of engagement of the petitioner as daily waged under the orders of this Court for counting 240 days to give him wages for one month in lieu of the notice period and compensation as provided under Section 25-F of the Act but it is the petitioner who is not receiving the said amount despite several efforts made by the respondent Board as is evident from the record. We observe that though the petitioner is not entitled to this amount, yet since the respondent Board is ready and willing to pay it to him, he is at liberty to receive the same from the office of the Executive Engineer within a period of three months from the date of this judgment. 10. We also find substance in the submission of the respondent Board that since the engagement of the petitioner was for a fixed period, no notice was required to be served on him for dis-engaging him as provided under Standing Order No. 14. The relevant portion of Standing Order No. 14 is:- "14. Termination of employment:- i) No workman who has been in the continuous service of the HPSEB for not less than one year as defined in the Industrial Disputes Act, 1947, shall be retrenched until he has been given one months notice in writing indicating the reasons for such retrenchment and the period of notice has expired or he has been paid in lieu of such notice, wages for the period of notice or for such period as the notice falls short or one month and further in this behalf principle of first come last go will be observed. Retrenchment compensation will be payable according to the provisions of the Industrial Disputes Act, 1947 2) In those cases which are not covered by sub-clause (i) services of a worker with less than one years service are terminable by giving ten days notice in writing or pay and allowance in lieu of such notice, even without assigning any reason by either side, by the party, issuing the notice to the party on whom the notice is served. In case of shorter notice an amount equal to the pay and allowance for the period for which notice falls short of the required period shall be payable by party, serving the notice, to the other party. In case of workman with more than one year’s service, 30 days notice will be required. However, no notice is required to be served on a workman for terminating his employment where: A workman is engaged for a specified period not exceeding one years continuous employment on one or more spells and in one or more trade..." 11. In case of workman with more than one year’s service, 30 days notice will be required. However, no notice is required to be served on a workman for terminating his employment where: A workman is engaged for a specified period not exceeding one years continuous employment on one or more spells and in one or more trade..." 11. In U.P. State Cooperative Land Development Bank Ltd., v. Taz Mulak Ansari and others (supra) the learned Judges of the Supreme Court have held the termination of the services of the workmen, who were engaged for a specified period under an agreement by holding that no notice for termination of heir services was necessary in view of proviso to clause (a) of Section 6-N of the U.P. Industrial Disputes Act, 1947. 12. The result of above discussion is that there is no merit in this writ petition and it is rejected. However, there is no order as to costs.