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2009 DIGILAW 1097 (HP)

H. P. S. F. C. v. PRESIDING JUDGE, LABOUR COURT

2009-11-19

KULDIP SINGH, R.B.MISRA

body2009
JUDGMENT Per Kuldip Singh, J.-This appeal has been directed against the judgment dated 26.12.2007 passed by the learned Single Judge in CWP No. 69 of 2006. The appellants were petitioners in the writ petition. 2. The facts, in brief, are that the award dated 28.9.2005 passed by Labour Court in reference No. 69/2002 was challenged by the appellants in CWP No. 69 of 2006. The State Government on 25.2.2003 had made the following reference to the Labour Court for adjudication:- “Whether the transfer of Smt. Lalita Sharma W/o Sh. Ghan Shyam Sharma vide order dated 17.12.1999 and 20.4.2000 and not regularizing as Clerk in the pay scale applicable to the H.P. Govt. employee by the Managing Director, H.P. State Forest Corporation Ltd. Kasumpti, Shimla-9 and Divisional Manager, H.P. State Forest Corporation Ltd., Division Chamba is proper and justified ? If not, from what date and what scale the above workman is entitled to be regularized?” 3. The respondent No.2 in her claim before the Labour Court had challenged her transfer order and sought regularization as Clerk / Typist w.e.f. 1.4. 2000 in regular pay scale of Rs. 3120 – 5160. The claim of the respondent No.2 was contested by the appellants. It was pleaded that transfer was due to administrative exigencies. The respondent No.2 was never appointed as Clerk / Typist and she was paid wages in accordance with law. The claim of the respondent No.2 for regularization as Clerk / Typist w.e.f. 1.4.2000 was also opposed. 4. The Labour Court had answered the reference partly in affirmative on 28.9.2005 and directed the appellants to regularize the respondent No.2 in the pay scale of Rs. 3120 – 5160 as Clerk w.e.f. 19.3.2001 with all consequential service benefits. The rest of the claim of respondent No.2 was rejected. In these circumstances award dated 28.9.2005 was assailed by the appellants in the writ petition on the grounds that the Labour Court had erred in directing the employer to regularize the services of respondent No.2 as Clerk w.e.f. 19.3.2001. The respondent No.2 had supported the award dated 28.9.2005 before the learned Single Judge. On 26.12.2007 the learned Single Judge dismissed the petition. Civil Review No. 14 of 2008 was filed by the appellants before the learned Single Judge against the judgment dated 26.12.2007 which was dismissed on 11.4.2008. The appellants have not challenged the order dated 11.4.2008 in the appeal. 5. Mr. On 26.12.2007 the learned Single Judge dismissed the petition. Civil Review No. 14 of 2008 was filed by the appellants before the learned Single Judge against the judgment dated 26.12.2007 which was dismissed on 11.4.2008. The appellants have not challenged the order dated 11.4.2008 in the appeal. 5. Mr. V.B. Verma, Advocate learned counsel appearing on behalf of the appellants has submitted that the learned Single Judge has erred in dismissing the writ petition. He has submitted that respondent No.2 vide Annexure A-1 dated 6.3.2007 had given her option on regularization to serve in any Department / Corporation against vacancy on any post. It has been submitted that vide Annexure A-2 dated 28.2.2007 the respondent No.2 had given her departure report before proceeding to join her duties in the office of Director of Education, Shimla. The precise submission of the learned counsel for the appellants is that the case of the respondent No.2 was considered as per policy of the Government and she was regularized, she accepted her regularization and has also given her option vide Annexure A-1 dated 6.3.2007 and thereafter departure report dated 28.8.2007. In these circumstances, the respondent No.2 is not entitled to regularization w.e.f. 19.3.2001 as ordered by the Labour Court and affirmed by the learned Single Judge. It has been submitted on behalf of the appellants that respondent No.2 has completed 8 years of continuous service on 31.3.2004 and respondent No.2 has been regularized on the basis of the policy of the Government and she is not entitled to regularization w.e.f. 19.3.2001. 6. We have gone through the impugned judgment. The appellants had not raised the point before the learned Single Judge that respondent No.2 was entitled to regularization on completion of 8 years of service on 31.3.2004. The appellants by way of CMP No. 1721 of 2007 sought permission of the Court to place on record certain documents including the details of daily wagers, who have completed 8 years of service as on 31.3.2004. The appellants had not amended the writ petition so as to incorporate the averments of CMP No. 1721 of 2007 in the writ petition. This apart the appellants before the learned Single Judge at the time of hearing of the petition never raised the point that respondent No.2 was entitled to regularization only from 31.3.2004. The appellants had not amended the writ petition so as to incorporate the averments of CMP No. 1721 of 2007 in the writ petition. This apart the appellants before the learned Single Judge at the time of hearing of the petition never raised the point that respondent No.2 was entitled to regularization only from 31.3.2004. The respondent No.2 had contested CMP No. 1721 of 2007 and had submitted that she was assured that her services would be regularized only if she will give undertaking. She was told that her services would be regularized from the date of initial engagement. It was in this background that she signed the option form dated 6.3.2007. The Labour Court has recorded a finding of fact and answered the reference on the basis of evidence on record which has been affirmed by the learned Single Judge. The appellants have failed to make out a case for interference, resultantly the appeal is dismissed with no order as to costs.