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2015 DIGILAW 1227 (HP)

Krishan Chand v. State of HP

2015-09-02

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. This letters patent appeal is directed against the judgment passed by the learned writ court, whereby the petition filed by the appellant came to be dismissed. 2. The appellant initially filed CWP No. 7098 of 2010, claiming therein the following reliefs: “1. That writ in the nature of mandamus may very kindly be issued by directing the respondents to re-engage the services of the petitioner with seniority, arrears and all consequential benefits; 2. That respondents may further be directed to regularize the services of the petitioner with effect from 18.10.2007 when persons junior to the petitioner have been regularized.” 3. This petition was disposed of at the threshold with a direction to the second respondent to look into the matter and verify the facts specially adverting to the grievance of the appellant and take a decision in accordance with law within a period of four months. 4. The case of the appellant was duly considered, but rejected on the ground that he had not completed 10 years of continuous service with the minimum of 240 days in each calendar year and, therefore, was not entitled for regularization. 5. This led the appellant to file CWP No. 1772 of 2011, wherein he claimed the following reliefs: “1. That writ in the nature of certiorari may kindly be issued, quashing and setting aside the impugned office order No. 206/2011 dated 9.3.2011 (Annexure P-3) passed by the Principal Chief Conservator of Forests, Himachal Pradesh; 2. That writ in the nature mandamus may kindly be issued , directing the respondents to re-engage the petitioner as Mate in Forest Sub Division, Chowari, District Chamba in Forest Division, Dalhousie and to grant work charged status to the petitioner after completion of 10 years service with continuity of service, seniority except back wages in light of the judgment passed by the Hon’ble Supreme Court in Mool Raj Upadhyaya Vs. State of HP as well as judgment passed by this Hon’ble Court in CWP (T) No. 5721 of 2008, titled as Dharam Chand Vs. State of HP & anr and also in light of policy of the State Government for regularization of daily waged workers, who have completed 10 years service.” 6. State of HP as well as judgment passed by this Hon’ble Court in CWP (T) No. 5721 of 2008, titled as Dharam Chand Vs. State of HP & anr and also in light of policy of the State Government for regularization of daily waged workers, who have completed 10 years service.” 6. According to the appellant, he had been supplied by the Forest Guard in the office of Forest Division, Chowari the mandays put by him which are as under: Year 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Mandays 138 270 251 259 244 298 317 246 - - - - It was further alleged that the services of the appellant had been illegally retrenched whereas his juniors had been retained thereby violating the principle of ‘first come last go’. 7. In the reply filed by respondents, it was averred that since the appellant had not completed 240 days in each calendar year except during the year 1997, 1998 and 1999, therefore, he was not entitled to the regularization of his services. Respondents had also annexed the mandays chart which is as under: Year 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 Mandays 35 104 153 185 247 250 289 219 111 91 0 24 It was also denied that the juniors had been retained. 8. When the proceedings were pending before the learned writ court, it vide orders dated 12.9.2011 directed the respondent State to file supplementary affidavit clarifying therein whether the persons junior to the appellant had been retained at the time of his retrenchment. 9. In compliance to the directions, the then Conservator of Forest Mr. Suresh Kumar, filed his personal affidavit wherein it was specifically stated that no person junior to the appellant had been retained by the department. Rather, it was clarified that the services of appellant in fact had never been retrenched by the department. 10. The learned writ court, after taking into consideration the pleadings and documents on record, dismissed the petition. 11. The appellant/petitioner has assailed the aforesaid order reiterating all the grounds as had been taken before the learned writ court. The appellant would urge that that learned writ court had erred in not taking into consideration the fact that his services had been illegally retrenched in September, 2004, whereas his juniors had been retained. 11. The appellant/petitioner has assailed the aforesaid order reiterating all the grounds as had been taken before the learned writ court. The appellant would urge that that learned writ court had erred in not taking into consideration the fact that his services had been illegally retrenched in September, 2004, whereas his juniors had been retained. It is also averred that the learned writ court had failed to take note of the mandays chart as appended with the petition. 12. We have learned the learned counsel for the parties and have gone through the records. 13. We, in order to satisfy ourselves about the actual working days put in by the appellant, had summoned the original record, which tallies with the mandays chart appended with the reply of respondents and, therefore, belies the mandays chart relied upon by the appellant. 14. We find no material whatsoever on the record which may also prima facie prove that the services of the appellant had in fact been retrenched or that his juniors had been retained thereby violating the principles of “first come last go.” 15. To be fair to the learned counsel for the appellant, it may be mentioned that she placed reliance on the judgments of this court reported in Dharam Chand V. State of HP & anr 2010(2) Him.L.R.1084, State of HP & anr V Kapil Dev 2011 (3) Him L.R.(DB) 1145, Himachal Pradesh State Electricity Board V. Shri Charan Dass 2012 (1) Him.L.R.(DB) 320 & Paras Ram V. Himachal Pradesh State Electricity Board Limited 2013 (1) Him L.R.465. 16. The judgment in Paras Ram’s case (supra) was relied upon to canvass that the plea of abandonment or relinquishment of service is required to be proved like any other fact. 17. Likewise judgments in Dharam Chand, Kapil Dev and Charan Dass (supra) were pressed into service to canvass that in case there was violation of Section 25 G & H of the Industrial Disputes Act (hereinafter referred to as the ‘Act’), then the workman was not required to complete 240 days preceding his retrenchment. 18. There can be no quarrel with the proposition of law laid down in the aforesaid judgments, but the moot question is whether these judgments are applicable to the facts of the instant case. 18. There can be no quarrel with the proposition of law laid down in the aforesaid judgments, but the moot question is whether these judgments are applicable to the facts of the instant case. As per case set up by the appellant himself, he had worked upto the year 2000, whereas it is only on 28.2.2010 that the appellant for the first time approached this court for the redressal of his grievances by filing CWP No.7098 of 2010. In such circumstances, it is not only reasonable but also legitimate to infer that the appellant had on his own abandoned the job or else he would have agitated the matter within a reasonable time. 19. Insofar as the applicability of the provisions of Section 25 G & H of the Industrial Disputes Act are concerned, as already observed, the appellant has failed to prove that any of his juniors had in fact been retained in service, rather he even failed to even prove that his services had been retrenched. Having said so, we find no merit in the appeal and accordingly the same is dismissed, leaving the parties to bear the costs.