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2015 DIGILAW 207 (HP)

Amresh Kuma Saini v. Himachal Road Transport Corporation

2015-03-19

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan J. By medium of this petition, the petitioner has claimed the following substantive reliefs:- “(i) Issue a writ of Mandamus or direction in the nature of Writ of Mandamus directing the respondents to treat the petitioner in continuous service of the respondents as conductor w.e.f. 1975 as has been held by the learned Labour Court in its award dated 4.5.1994. (ii) Issue a writ of Mandamus or direction in the nature of Writ of Mandamus directing the respondents to issue due and admissible pension, pensionary benefits and other consequential benefits to the petitioner by treating the petitioner to be in service of the respondents w.e.f. 1975. (iii) Issue a writ of Mandamus or direction in the nature of Writ of Mandamus directing that the petitioner may kindly be held entitled to be in regular service of the respondents after completion of 8 years or 10 years of service as per the instructions of the govt as the relevant time with all the consequential benefits. (iv) Issue a writ of Certiorari or direction in the nature of writ of certiorari quashing/setting aside order dated 20.3.1998 (Annexure P-5) to the extent it is against the petitioner and office order No.HO:9E-CWP(T) 13842/08/ AMRESH.SAIN/ EX.COND/NHN, dated 30.3.2010 (Annexure P-12).” 2. Indisputably, the petitioner was appointed as a conductor in the respondent-Corporation in the year, 1975. Subsequently vide order dated 24.4.1977 the services of the petitioner were terminated, against which the petitioner sought reference which was registered as Reference No. 72 of 1989. The learned Labour Court vide its award dated 10.6.1992 answered the reference in negative against the petitioner, which findings were challenged by the petitioner by way of CWP No. 242 of 1993. This Court vide its order dated 10.1.1994 set aside the aforesaid award and the matter was remitted back to the Labour Court for a decision afresh. The Learned Labour Court in compliance to the aforesaid directions passed its award on 4.5.1994, the operative part whereof reads as follows:- “Relief: Keeping my findings on the aforesaid issue in view, I hold that the termination of the petitioner is illegal and unjustified and as such, the same is set-aside and the petitioner is ordered to be re-instated in the same position which he was holding on 25.4.1977. As regards the back wages, keeping in view the inordinate delay in raising the dispute by the petitioner, the same are assessed at Rs.5,000/-. As such, the reference is answered accordingly. A copy of this award be sent to the Government of Himachal Pradesh, Shimla-2, for its due publication in the H.P. Rajpatra in accordance with law. A copy of this award be supplied to each of the parties, free of cost, if applied for. The file after its due completion be consigned to the record room. “ 3. Though in terms of the award passed by the learned Labour Court, the petitioner would be deemed to be in service from the initial date of his appointment i.e. 1975, yet the respondents for some strange reasons ordered his regularization in service w.e.f. 20.3.1998. This constrained the petitioner to file representations and issue legal notice, but no avail. Ultimately, the petitioner preferred OA No. 2224 of 2006 before the State Administrative Tribunal, which was subsequently transferred to this Court and registered as CWP(T) No. 13842 of 2008. This petition came up for consideration on 15.12.2009 and the respondents were directed to consider the petition as a representation and take decision by passing a speaking order. The representation of the petitioner was rejected vide order dated 30.3.2010, constraining him to file the present petition. 4. In reply filed by the respondents, there is no plausible explanation as to why the services of the petitioner were regularized only in the year 1998, when admittedly in terms of the award passed by the learned Labour Court, the petitioner was deemed to be in continuous service from his initial date of appointment i.e. 1975. The only reasons for denying him pension are contained in paras 9 and 12 of the reply, which reads thus:- “Para-9. That the contents of para-9 which pertains to record are not denied, however, contrary submissions are wrong and hence denied. As submitted above the petitioner was held the casual worker in this Corporation w.e.f. 23.1.1975 to 23.4.1977 as Cleanercum Conductor for a period of month to month basis on the basis of his conduct report/satisfactory work. But petitioner was involved continuously in ticket less traveling cases and his services rightly were dispensed on 25.4.1977. As submitted above the petitioner was held the casual worker in this Corporation w.e.f. 23.1.1975 to 23.4.1977 as Cleanercum Conductor for a period of month to month basis on the basis of his conduct report/satisfactory work. But petitioner was involved continuously in ticket less traveling cases and his services rightly were dispensed on 25.4.1977. Thereafter, in compliance or orders dated 04.05.1994 of Presiding Officer, learned Labour Court, the petitioner was engaged as Conductor purely on daily waged basis w.e.f. 28.09.1994 as well as a sum of Rs.5000/- (Five thousand only) in lieu of back wages was also paid to him. Rest of the contents are wrong and denied. Para-12 That the contents of para-12 which pertains to record are not denied, however, contrary submissions are wrong and hence denied. The petitioner was retired on attaining the age of superannuation on 31.07.2007 before completing the qualifying service of 10 years and as such he is not entitled for any pension. However, under Rule 49 and 50 of the CCS Pension Rule-1972, the retirement gratuity and service Gratuity of Rs.97,369/- has been paid to the petitioner.” 5. I am afraid that the justification put forth by the respondents cannot be accepted in teeth of the award passed by the learned Labour Court, more particularly, when the same has attained finality. Once the petitioner is deemed to be in continuous service w.e.f. 1975 and has been ordered to be re-instated on the post he was holding on the date of his illegal termination on 25.4.1977, there is no legal or valid justification for postponing his date of regularization up to 20.3.1998, by which time the petitioner had already put in more than 24 years of service. 6. The State Government had framed a policy to regularize the services of the daily waged workers, who had completed 10 years or more of continuous service on 31.12.1993 w.e.f. 1.1.1994 and this policy with certain modifications was approved by the Hon’ble Supreme Court in Mool Raj Upadhyaya Vs. State of H.P. and others 1994 Supp (2) SCC 316. It is not disputed by the learned counsel for the respondents that the policy framed by the Government is being regularly followed by the Corporation. State of H.P. and others 1994 Supp (2) SCC 316. It is not disputed by the learned counsel for the respondents that the policy framed by the Government is being regularly followed by the Corporation. Once this be the position, there is no justification why the petitioner should not be ordered to be regularized in terms of the policy framed by the Government, as approved with modifications by the Hon’ble Supreme Court. 7. In view of the aforesaid discussion, the present petition succeeds and the impugned order dated 20.3.1998 (Annexure P-5) to the extend it is against the petitioner and the office order No.HO:9E-CWP(T) 13842/08/ AMRESH.SAIN/ EX.COND/NHN, dated 30.3.2010 (Annexure P-12) are quashed and set aside. The respondents are directed to consider the case of the petitioner for regularization w.e.f. 1.1.1994 and thereafter take further decision regarding pensionary benefits payable to the petitioner within a period of two months. Needless to clarify that the petitioner shall be entitled to all actual monetary benefits flowing out from this order and this process shall be completed within a period of two months, failing which the respondents shall also be liable to pay interest @ 9% per annum on all the amounts from the date they fell due. The petition along with pending applications, if any, is disposed of, leaving the parties to bear their costs.