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2014 DIGILAW 1634 (HP)

Lata Sharma v. H. P. State Electricity Board

2014-11-13

DHARAM CHAND CHAUDHARY, MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. The challenge in this Letters Patent Appeal is to the judgment and order dated 11.5.2009, passed by the learned Single Judge of this Court in CWP (T) No.4371 of 2008, (OA 1053/97) titled Miss Lata Sharma vs. The HP State vs. The Himachal Pradesh State Electricity Board and others, on the grounds taken in the memo of appeal, for short ?the impugned judgment.? 2. We have gone through the impugned judgment and the petition filed by the petitioner. 3. It appears from the record that the petitioner had invoked the jurisdiction of the Erstwhile Tribunal by filing Original Application and sought reliefs commanding the respondent-Board to re-instate and regularize her services. 4. The respondents have filed the reply. It is stated that she was working with them w.e.f. 12.6.1985 to 25.7.1987 with certain interruptions/ breaks as shown in Annexure RA-2. Thereafter she at her own did not perform her duties w.e.f. 25.7.1987. They have specifically stated that they have not terminated the service of the petitioner. It is apt to reproduce para 2 of the reply on preliminary objections and paras 3, (vi), (ix) and (x) of the reply on merits herein: ?2.In this context, the replying respondents submit with utmost respect that the applicant herein was initially engaged by the respondent No. 2 at Panchrukhi (under respondent No.3) on daily wages against the post of bill distributor on 12.6.1985 on the basis of request made by the petitioner received by the respondent No. 2 through the respondent No.1 (Annexed atRA-1). The applicant worked under respondent No. 3 w.e.f. 12.6.1985 to 25.7.1987 with certain interruptions/breaks. A copy of statement showing presence/absence of the applicant is placed on record as (Annexurer-RA-2) and there after applicant left the job of her own accord on w.e.f. 25.7.1987. The respondent No.3 has never terminated the services of the applicant rather she left the service at her own will as back as in the year of 1987 i.e. 10 years back, hence the question of terminating her service does not arise at all. Therefore, the original application is not maintainable.? Para-3. Denied to the extent that the services of the applicant were ever dispensed with by the respondent No. 3 rather she abandoned the ob at her own accord. Therefore, the original application is not maintainable.? Para-3. Denied to the extent that the services of the applicant were ever dispensed with by the respondent No. 3 rather she abandoned the ob at her own accord. Although she was engaged as bill distributor on daily rated and subsequently she was also performing the duties of MLCS, as and when required but it is incorrect to say that she was paid the wages of daily rated labourer (as per annexed RA-3). In fact she was paid wages of clerk w.e.f. 29.8.85 to 25.7.87 in compliance with the directions of the Hon'ble High Court passed in the CWP 647 titled Sh. Tirath Raj versus HPSEB and @ rates as applicable from time to time and considering that she has oftenly been performing the duties of MLCs,. 4-5….. 6. (i) to (v)…… (vi)That contents of this sub-para as stated are wrong and hence denied. It is submitted respectfully that the respondent No. 3 has never terminated the services of the petitioner rather she abandoned the job of her own accord. It is further added that after completion of 240 days one does not become entitled for appointment on regular basis as claimed by the applicant in t his sub-para. (vii) to (viii)……. (ix)The contents of this sub-para are wrong and hence denied. The petitioner was given casual cards for the period she worked with the respondent No.3.However, her name was not included in the seniority list as she had neither put in six months un-interrupted service nor actually worked or 120 days prior to 31.8.1986 as per details annexed RA-3 and was not eligible to be brought on the seniority list according to the principle laid down in the CWP 190 of 1984 communicated vide respondent No. 1 letter No. HPSEB (SECTT)/LWO-7-5/84-60748-907 dated 8.6.1984 in consonance to instructions circulated vide Secretary (Labour & Employment) to HP Govt. Letter No. Shram (I)-8/84-II dated 26.9.1986 (Copy annexed at RA-4. Letter No. Shram (I)-8/84-II dated 26.9.1986 (Copy annexed at RA-4. The applicant never requested respondent No.2 and 3 for the issuance of casual cards for full period and seniority list and as indicated in para (vii) above also her services were not terminated by the respondent No. 3 hence question of any malafide intention on the ground that respondent No.3 did not want to regularize her services does not arise as she was initially appointed as Bill Distributor subsequent to her working as MLC from time to time she was paid the wages of the Clerk w.e.f. 29.8.1985 to 25.7.87, because the rates for Clerk were notified w.e.f. 29.8.85. (x) The contents of this sub-para are wrong and hence denied. It is submitted that the respondent No. 3 had never terminated the services of the petitioner rather she left the job of her own accord. As such, the compliance of Section 25 (g) and 25 (f) of the Industrial Dispute Act, 1947 is not mandatory in this case. However, it is correct that she performed the duties of clerk as and when required and accordingly the wages of Daily rated Clerk has already been paid top her as per details (Annexed RA-1) In fact the rate of Rs10/- per day has only been given to her w.e.f. 12.6.85 to 28.8.85.? 5. The petitioner has not filed any rejoinder and has also not been able to place on record the termination order. The petitioner has not stated the reasons why she left/ abandoned the duties right from 25.7.1987. Though, she has filed the writ petition before this Court which was dismissed for want of jurisdiction but no liberty was granted to her. Thereafter OA was filed before the HP State Administrative Tribunal. 6. The petitioner on her own has abandoned the service, so the question of issuance of mandamus directing her re-instatement does not arise at all. 7. The learned Single Judge after going through the pleadings and hearing the arguments rightly made the well reasoned judgment, needs no interference. Accordingly, the appeal is dismissed alongwith pending applications, if any.