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Himachal Pradesh High Court · body

2013 DIGILAW 28 (HP)

DIVISIONAL FOREST OFFICER v. SHRI SINGH

2013-01-04

RAJIV SHARMA

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JUDGEMENT RAJIV SHARMA, J. 1. THIS writ petition is directed against the award passed by the Industrial Tribunal-cum-Labour Court, in reference No. 282 of 2001, dated 22.2.2011. 2. THE material facts, necessary for adjudication of the petition, are that the respondent, hereinafter referred to as 'the workman' for convenience sake, was engaged as Mazdoor-cum-Chowkidar in the Forest Division, Salooni in the year 1985. The case of the workman in nutshell is that though he has completed 10 years continuous service, he has not been regularized. The workman raised industrial dispute and the whether the reporters of the local papers may be allowed to see the judgment? Labour Commissioner has made the following reference to the Industrial Tribunal-cum-Labour Court bearing No. 282 of 2001: "Whether the act of Divisional Forest Officer, Forest Division Salooni, Distt. Chamba, H.P. to not regularize Sh. Singh, s/o Sh. Chandu w.e.f. 1.1.1996 and then termination w.e.f. March, 2000 without complying the provisions of I.D. Act, 1947 is proper and justified? If not, what reliefs i.e. reinstatement, date of regularization, salary, seniority and compensation the above workman is entitled to?" Thereafter, the workman filed the claim petition before the Industrial Tribunal-cw/n-Labour Court. The State has filed the reply to the claim petition. The Industrial Tribunal-cwm-Labour Court on 24.5.2006 framed the issues and the award was passed by the Industrial Tribunal-cum-Labour Court on 22.2.2011. The workman was held entitled for regularization w.e.f. 1.4.2000. It is in these circumstances, the State has challenged the award dated 22.2.2011. 3. MR. J.S. Guleria, Assistant Advocate General, has vehemently argued that since the workman has not completed 10 years continuous service with 240 days in a block or 12 calendar months, the Industrial Tribunal-cu/n-Labour Court could not order his regularization w.e.f. 1.4.2000. He also contended that the workman was engaged as seasonal worker. 4. MR. Ashwani Pathak, Advocate, has supported the award dated 22.2.2011. According to him, the workman has been given artificial/frictional breaks to deprive him the regularization. What emerges from the facts is that the workman was engaged in the year 1985. He has completed only 140 days in 1985, 266 days in 1986, 111 days in 1987, 156 days in 1988. MR. Ashwani Pathak, Advocate, has supported the award dated 22.2.2011. According to him, the workman has been given artificial/frictional breaks to deprive him the regularization. What emerges from the facts is that the workman was engaged in the year 1985. He has completed only 140 days in 1985, 266 days in 1986, 111 days in 1987, 156 days in 1988. He has completed 268 days in 1989, 255 days in 1990, 245 days in 1991, 238 days in 1992, 250.50 days in 1993, 304 days in 1994, 225.5 days in 1995, 276 days in 1996, 228 days in 1997, 252 days in 1998 and 289 days in 1999. 5. THEREAFTER, the workman was retrenched during the conciliation proceedings, however he has been re-engaged in 2006. It has nowhere been pleaded by the State that the workman was only a seasonal worker. The workman has been prevented from completing 240 days in 1992, 1995 and 1997, by giving him frictional/artificial breaks, which amounts to unfair labour practice. There is shortage of 2 days in 1992,15 days in 1995 and 12 days in 1997. The management has also not placed any tangible evidence on record to establish that either the work was not available or the funds were not available. 6. ON the basis of the judgment rendered by this Court in C.W.P. No. 5900 of 2010, titled Shaym Lal v. State of H.P. and Others dated 18.12.2012, Mr. Ashwani Pathak, advocate has vehemently argued that in fact the State has taken a policy decision to give frictional/artificial breaks to the workmen to prevent them from seeking regularization and conferment of work charge status. It is evident from the letter quoted in the aforesaid judgment dated 14.9.2007 that in fact, the State has been giving artificial/frictional breaks and this decision was modified subsequently and a policy decision was taken not to give artificial/frictional breaks to the workman. Relevant portion of the judgment cited hereinabove reads as under: "2. Petitioner has placed on record copy of letter dated 14.9.2007. It is established from the contents of letter dated 14.9.2007 that respondent-State had been following the practice of giving artificial breaks to the workmen to prevent them from completing 240 days. According to letter dated 14.9.2007, the workmen were to be engaged for 15/18/20 days every month. Petitioner has placed on record copy of letter dated 14.9.2007. It is established from the contents of letter dated 14.9.2007 that respondent-State had been following the practice of giving artificial breaks to the workmen to prevent them from completing 240 days. According to letter dated 14.9.2007, the workmen were to be engaged for 15/18/20 days every month. Now, as per letter dated 14.9.2007, the Principal Secretary (Public Works) has directed the Engineer-in-Chief, Chief Engineer and Superintending Engineers to ensure that the workmen are permitted to complete 240 days in a year and the persons, who were engaged before 2006 on the intermittent break basis, shall also be given muster roll for full month in relaxation of policy. There should not be any policy of the State Government contrary to the provisions of Industrial Disputes Act, 1947 and Articles 14 and 16 of the Constitution of India. Respondent-State has also not substantiated that there was any shortage of funds or work was not available. It is evident that the policy decision has been taken to prevent the workmen from completing 240 days in a year. The State cannot take a policy decision which affects the livelihood of the workmen and also prevents them from seeking benefits under the labour laws." In the instant case, the workman ought to have been permitted to complete 2 days in 1992, 15 days in 1995 and 12 days in 1997. The State is a welfare State and could not indulge in unfair labour practice. The practice adopted by the State to give artificial/frictional breaks besides arbitrary was also unreasonable. Accordingly, shortage of few days ought to have been condoned. In view of this, there is no illegality and perversity in the award dated 22.2.2011. The Industrial Tribunal-cum-Labour Court has rightly ordered regularization of the workman w.e.f. 1.4.2000. 7. IN view of above discussion and analysis, there is no merit in the writ petition, which is dismissed accordingly. Pending applications, if any, also stands disposed of. No costs. Petition dismissed.