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2002 DIGILAW 27 (PNJ)

Ashok Kumar v. State Of Haryana

2002-01-07

MEHTAB S.GILL

body2002
Judgment MEHATAB S. GILL, J. 1. He petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 18/07/2001 (annexure P-6), passed by the Executive Engineer, Provincial division, PWD (B and R) Branch, Jhajjar, whereby his claim for regularisation was rejected. 2. The petitioner has averred that he was appointed as motor mate on daily wages on 4/11/1992, and continued without any break up to 31/05/1994. Thereafter, with effect from 1/06/1994, he was not allowed to continue in service. The petitioner raised an industrial dispute and the matter was compromised on 27/09/1994, before the conciliation officer and he was taken back in service on the previous post with the condition that he will not claim back-wages for the period from 1/06/1994, to 2/10/1994. The service of the petitioner was again terminated on 1/12/1994. The petitioner raised an industrial dispute again. The Industrial Tribunal-cum-Labour Court, vide its award dated 23/12/1998 (annexure P-1), reinstated him with continuity of service and 25 per cent, of the back-wages were awarded to him. The petitioner was taken back in service on 23/12/1999, and since then he is working in that post. A policy decision for daily wage workers was taken by the State of Haryana wherein it was stated that an employee who had completed three years service on 31/01/1996, was entitled for regularisation. The copies of the policy decisions to this effect are attached with the writ petition as annexures P-2 and P-3. The petitioner requested the respondents to consider his case for regularisation, but he did not receive any communication in this regard. Thereafter, a demand notice dated 5/03/2001 (annexure P-4), was served by him and request was made that if his case for regularisation was not considered within one month, the petitioner will have no alternative but to move the High Court. The petitioner filed civil Writ Petition No.5659 of 2001 before this Court and the same was disposed of with a direction to consider the demand notice issued by him. The claim of the petitioner was rejected, vide order dated 18/07/2001, of the executive Engineer; Provincial Division, pwd (B and R) Branch, Jhajjar, a copy of which is at annexure P-6 and has been impugned in this writ petition. Notice of motion was issued. The claim of the petitioner was rejected, vide order dated 18/07/2001, of the executive Engineer; Provincial Division, pwd (B and R) Branch, Jhajjar, a copy of which is at annexure P-6 and has been impugned in this writ petition. Notice of motion was issued. Written statement was filed on behalf of the first and second respondents.1 have heard learned counsel for the petitioner and the respondents. 3. Learned counsel for the petitioner has laid a lot of stress on the award dated 23/12/1998 (annexure P-1), passed by the presiding Officer, Industrial tribunal-cum-Labour Court, Rohtak. In the award dated 23/12/1998, passed by the presiding Officer, Industrial tribunal-cum-Labour Court, Rohtak, it has been held that the petitioner had completed 240 days of his service and still his services were terminated without giving him notice or retrenchment compensation. The workman-petitioner was reinstated and 25 per cent of back-wages was awarded to him. Learned counsel for the petitioner has drawn my attention to annexure P-2, which is a circular issued by the Chief Secretary to government, Haryana, to all the heads of the departments for regularisation of work charged/casual/daily rated employees. It has been clearly stated therein that the casual and daily rated employees who had completed five years service on 31/01/1996, and were in service on 31/01/1996, shall be regularised provided they have worked for a minimum period of 240 days in each year and the break in service in any year is not more than one month at a time. 4. Further, learned counsel for the petitioner has drawn my attention to the circular dated 18/03/1996, annexure P-3, which was issued by the Chief Secretary to government, Haryana, to all the heads of the departments, whereby the previous circular dated 7/03/1996 (annexure P-2), was amended to this extent that the period of five years put in by an employee was reduced to three years service for his regularisation. The petitioner had worked for more than 240 days and was employed on 31/01/1996, with the respondents. As per the award, the petitioner was reinstated on his previous post and has been given all the benefits. 5. The only bone of contention between the petitioner and the respondent-State is with regard to the document, annexure R-1/t, attached with the written statement filed by the respondents whereby a compromise was struck between the petitioner and the respondent-department before the labour-cum-Conciliation Officer, Rohtak, on 27/09/1994. 5. The only bone of contention between the petitioner and the respondent-State is with regard to the document, annexure R-1/t, attached with the written statement filed by the respondents whereby a compromise was struck between the petitioner and the respondent-department before the labour-cum-Conciliation Officer, Rohtak, on 27/09/1994. The condition for the reinstatement of the petitioner was that the petitioner will not claim the wages of the break period from 1/06/1994, to 2/10/1994, and he will report for duty on 3/10/1994. The petitioner reported for duty and he did not claim his back-wages from 1/06/1994, to 2/10/1994. 6. Learned counsel for the respondents has stated that as per this condition, the other benefits accruing to the petitioner from 1/06/1994, to 2/10/1994, could not be given to the petitioner as he himself has given up his claim for other benefits of service from 1/06/199 4/10/1994. This argument of learned counsel for the respondents does not cut any ice. 7. Learned counsel for the petitioner has drawn my attention to a judgment of the division Bench of this Court rendered in the case of Dalip Singh V/s. State of Haryana 1999 (1) RSJ 722, wherein it has been held as under: "the petitioners are not eligible to be considered for regularisation of services because they have not worked for three years preceding 31/01/1996, and they have not been paid for that period. However, we have not felt impressed and are not inclined to agree with him that notwithstanding the award passed by the labour Court on the basis of the compromise arrived at between the parties that the petitioners will be reinstated with continuity of service, they are not to be treated as continuing in service for the purpose of consideration of their cases for regularisation of service. The award passed by the Labour Court, which must be treated as statutory in character by virtue of Section 18 of the Industrial Disputes Act, 1947, has the effect of conferring a right upon the petitioners to be treated as continuing in service for the entire period between the date on which the respondents discontinued their engagement and the date on which they were allowed to rejoin duties in compliance with the award dated 10/06/1996. Therefore, it is not possible to treat the intervening period differently for the purpose of considering the petitioners for regularisation of their service in accordance with the policy framed by the government. " The copies of the policy in the present case are attached as annexures P-2 and P-3. 8 As per the above cited judgment, the petitioner is deemed to be in service for the period from 1/06/1994, to 2/10/1994, but he is not entitled to back-wages, which the petitioner had given up himself. The petitioner, accordingly, shall be entitled to all other benefits during this period. 9. The writ petition is allowed and the order dated 18/07/2001 (annexure P-6), passed by the second respondent is quashed. The respondents are directed to regularise the services of the petitioner with effect from feb 1/02/1996, after taking into account the period from 1/06/1994, to 2/10/1994, as his duty period. The parties are left to bear their own costs.