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2015 DIGILAW 541 (HP)

Naresh Kumar v. State Of Himachal Pradesh

2015-05-15

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. 1. Petitioner was engaged as Beldar on daily wage basis on 1.1.2001. He worked without break till 30.6.2003. He was retrenched orally on 1.7.2003. Petitioner filed original application before the erstwhile Himachal Pradesh Administrative Tribunal. He was reengaged on 4.11.2003. The original application was withdrawn on 13.8.2004. Petitioner worked after re-engagement with effect from 4.11.2003 till 17.9.2004. He was again retrenched on 18.9.2004. He raised. Industrial dispute. The Labour Commissioner made reference to the Labour Court. The Labour dismissed the petition vide award dated 8.6.2007. Petitioner filed CWP No. 1019 of 2007 assailing the award dated 8.6.2007. CWP No. 1019 of 2007 was allowed on 1.10.2007. The award dated 8.6.2007 was set aside and the respondents were directed to re-employ the petitioner. However, back wages were restricted to 50% from the date of retrenchment till the date of judgment, i.e. 1.10.2007. In sequel to judgment dated 1.10.2007, petitioner was re-engaged on 10.10.2007. Case of the petitioner, in a nutshell, was that though he had completed 8 years of service, but he was not regularized. However, during the course of the pendency of writ petition, respondents have placed on record copy of letter dated 3.9.2012 whereby the petitioner has been regularized. 2. Mr. V.D. Khidtta, learned counsel for the petitioner, has vehemently argued that his client was entitled for regularization by counting his service from the initial date of engagement, i.e. 1.1.2001. 3. Mr. Parmod Thakur, learned Additional Advocate General, has strenuously argued that the petitioner has not completed 240 days in the years, 2001, 2002, 2003, 2004, 2005, 2006 and 2007. 4. We have gone through the mandays' chart of the petitioner, which is placed on record vide Annexure R-2. Petitioner has worked for 234 days in the year 2002 and for 206 days in the year 2003. It is duly established that the petitioner has been given artificial breaks by the management by adopting unfair labour practice. Petitioner has not been permitted to complete 240 days in the years 2002 and 2003 to get the status of regular employee. Artificial breaks have been given to the petitioner in a systematic way in the months of April, August, November and December, 2002 and no muster-roll has been issued to him. Muster roll has also not been issued to him for the months of April, July, August, September and October, 2003. Artificial breaks have been given to the petitioner in a systematic way in the months of April, August, November and December, 2002 and no muster-roll has been issued to him. Muster roll has also not been issued to him for the months of April, July, August, September and October, 2003. Similarly, in the months of October, November and December, 2004, no muster roll has been issued to the petitioner. In case he had been issued muster roll for these months and also the National Holidays and Sundays were counted, he would have definitely completed 240 days in each calendar year. Annexure R-II reflects that petitioner has not completed 240 days in the years 2005 and 2006. The reason for the same is that he was retrenched on 18.9.2004 and was re-engaged on 15.10.2007. The retrenchment period from 2004 to 2007 is to be counted for the purpose of regular service. Thus, accumulatively the period with effect from 1.1.2001 to 15.10.2007 was to be counted for the purpose of seniority. Accordingly, the writ petition is allowed. Respondents are directed to regularize the petitioner immediately after the competition of 8 years by counting 8 years with effect from 1.1.2001 within a period of 4 weeks from today with all the consequential benefits. Pending applications, if any, also stands disposed of. No costs.