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2015 DIGILAW 888 (HP)

State Of Himachal Pradesh v. Hari Dutt

2015-07-14

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. - By medium of this petition, the State has questioned the order passed by the Himachal Pradesh Administrative Tribunal (for short the 'Tribunal') on 11.01.2008 whereby the respondent was ordered to be appointed as work charged Pipe Fitter Grade-I with effect from 01.01.1995. 2. The facts in brief are that the respondent was engaged as 'Beldar' on 22.09.1983 and thereafter at different intervals had worked as 'Beldar', Fitter and Mate till 20.11.1984. He was thereafter engaged as a Fitter with effect from 22.11.1984 and was offered appointment as work charged 'Beldar' with effect from 01.01.1994, but he declined to accept such offer and represented that since he had been working as Fitter Grade-I, therefore, he on completion of requisite service be appointed as work charged Fitter Grade-I. However, even then on completion of requisite 10 years of daily waged service, the respondent was only given appointment on work charged basis as Fitter Grade-II instead of Grade-I which constrained him to file original application before the learned Tribunal. 3. The petitioners in their reply sought to justify their action by submitting that the services of the respondent had been regularised as Fitter Grade-II strictly as per the directions of the Hon'ble Supreme Court in Mool Raj Upadhyaya v. State of H.P. and others 1994 Supp (2) SCC 316. 4. When the matter was pending before the Tribunal, the petitioners despite repeated directions from it did not furnish the complete details of the working days/years of the respondent after 21st of December, 1984 till 8th February, 1996 clearly indicating as to which job the respondent had been performing during this period. It only produced the mandays chart of the work performed by the respondent and further pleaded that there was no difference in the wages paid to the respondent as Pipe Fitter, W.C. Fitter and Fitter Grade-I. 5. This constrained the learned Tribunal on 04.04.2007 to pass the following order:- "Heard for some time when it was appeared that Annexure A filed with the supplementary affidavit may not be correct. This impression is created by the fact that as per Annexure A the applicant as Grade II Fitter was paid at the rate of Rs. 31/- per day during the months of August and September, 1989 against muster roll No.638. This impression is created by the fact that as per Annexure A the applicant as Grade II Fitter was paid at the rate of Rs. 31/- per day during the months of August and September, 1989 against muster roll No.638. However, it appears that during the months of November and December, 1989 he worked as Fitter Ist Grade during the subsequent period but still he was paid the wages at the rate of Rs. 31/- per day which does not seem to be probable. Even during the period prior to October-November, 1989 the applicant was paid daily wages as a Fitter at the rate of Rs. 31.45 paisa which evidently is more than daily wages of Fitter Grade II and Fitter Grade I as payable in November and December, 1989. In these circumstances the learned Deputy Advocate General prays for time to seek clarification in this regard, hence the matter is adjourned and be listed during the courses of next circuit." 6. In compliance to the above orders, the petitioners filed supplementary affidavit, relevant portion whereof reads as under:- "In pursuance to above directions it is stated that the applicant has been paid wages as Fitter Grade-I and Fitter Grade-II i.e. Rs. 31/- in the month of August and September, 1989 as well as in the month of November and December, 1989 which is correct as per record." 7. However, even the aforesaid supplementary affidavit was not found satisfactory and this further constrained the learned Tribunal on 05.12.2007 to pass the following order:- "The supplementary affidavit filed by the respondents perused but it does not disclose specifically as to whether a Fitter Grade I and a Fitter Grade II are paid the same daily wages/pay scale or for the purpose of daily wage these are to distinct categories of posts. Adjournments were given to clarify this position which is not clarified in the supplementary affidavit. In these circumstances the concerned Executive Engineer be present in person on the next date to answer the aforesaid query with the help of relevant notifications, orders, instructions pay scale etc. whatever may be relevant." 8. Notably, even despite the aforesaid order, the concerned Executive Engineer did not choose to produce the record containing notification etc. fixing daily wages of different daily rated categories. whatever may be relevant." 8. Notably, even despite the aforesaid order, the concerned Executive Engineer did not choose to produce the record containing notification etc. fixing daily wages of different daily rated categories. This, then compelled the learned Tribunal to draw an inference that the respondent had throughout worked and was paid the wages of Fitter Grade-I from November 28, 1984 till the grant of work charged status to him and, therefore, it was concluded that he was daily rated Fitter Grade-I. It is apt to reproduce Para-9 of the impugned judgment which reads thus:- "9. The concerned Executive Engineer did not choose to produce the record containing notification etc. fixing daily wages of different daily rated categories. It is against this background of constant failure of respondents to clearly bring to the fore whether Fitter Grade-I and Fitter Grade-II are distinct categories or are equal in the matter of the wages and particularly the failure to produce relevant records that the legitimate inference that had the record been produced it would have belied the implied claim of equation of various categories of Fitter in the matter of wages and that the wages paid to the applicant were those payable to Fitter Ist Grade would have affirmed. The result of the inference is that the applicant throughout worked as and was paid wages of Fitter Grade-I from November 28,1984 till grant of work charged status to him therefore he was a daily rated Fitter Grade-I." Based on the aforesaid reasoning the learned Tribunal passed the aforesaid directions which have now been assailed in this writ petition before this Court. 9. It is vehemently contended by the learned Advocate General that the learned Tribunal fell in error in not considering the clarification given by the petitioners in the supplementary affidavit filed on 03.12.2007 where it had specifically been mentioned vide Para No.5 that there is no post of Fitter Grade-I and Grade-II as per notification dated 26.09.2000 and the Government categorized the post as Technician and allowed three tier pay scale as on the cadre strength of 01.01.1996 in the pay scale of 3120-5160, 4020-6200 and 4500-7220. Therefore, the grade that was to be allowed to the respondent fell in the category of Junior Technician and accordingly the respondent has rightly been regularised as Fitter Grade-II now Junior Technician. 10. Therefore, the grade that was to be allowed to the respondent fell in the category of Junior Technician and accordingly the respondent has rightly been regularised as Fitter Grade-II now Junior Technician. 10. The petitioners have also pressed into service the judgment of the Hon'ble Supreme Court in Secretary, State of Karnataka and others v. Uma Devi (3) and others (2006) 4 SCC 1 to canvass that in order to claim regularisation it was incumbent upon the respondent to have proved that his recruitment was in accordance with the scheme as envisaged in the Constitution. The appointment of the respondent was contrary to the R&P Rules and, therefore, his services could not have been ordered to be regularized. We have heard learned Advocate General for the petitioners and Shri Y.P.S. Dhaulta, Advocate, for the respondent. 11. Indisputably, the findings recorded by the learned Tribunal are pure finding of fact and can be interfered with only on well settled principles. 12. Now in case the notification dated 26.09.2000 is perused, the same is definitely of no avail to the petitioners because the Court is primarily concerned with the instructions that were prevailing or would govern the regularisation of the daily wager, more particularly, Fitter Grade-I, in the year 1994. That being so, the petitioners cannot be permitted to rely upon the aforesaid notification which was not even in existence at the time when the case of the respondent for conferment of work charged status was to be considered. 13. Coming to the applicability of the judgment of Uma Devi's case (supra), it may be noticed that it was not even the case of the petitioners before the Tribunal that the respondent was not at all entitled to regularization. Rather, the dispute was only with respect to the post on which the services of the respondent were to be regularized. Therefore, we are constrained to observe that it is on account of implacable and obdurate attitude of the petitioners that they have taken recourse and shelter to Uma Devi's case (supra) to defeat the legitimate claim of the respondent. Little realizing, that even as per Uma Devi's case (supra) it is not that the State Government in no circumstance can regularise the services of daily waged employees. Little realizing, that even as per Uma Devi's case (supra) it is not that the State Government in no circumstance can regularise the services of daily waged employees. This exception has itself been carved out in Para-53 of the judgment by observing that the Union of India/State Governments/their instrumentalities should take steps to regularise the services of such irregular employees, who have worked for more than 10 years. Reference in this regard can conveniently be made to a very recent judgment in Surendra Kumar and others v. Greater Noida Industrial Development Authority and others, Civil Appeal No.4916 of 2015 arising out of SLP (Civil) No.662 of 2014), decided on 2nd July, 2015, wherein the Hon'ble Supreme Court observed as under:- "10. In the impugned judgment, the Division Bench proceeded on the premise as if Uma Devi's case (supra) held that the State Government, in no circumstance, can regularise the services of contractual employees. In para (53) of Uma Devi's case (supra), the Constitution Bench carved out an exception by observing that the Union of India/State Governments/their instrumentalities should take steps to regularise the services of such irregular employees who have worked for more than ten years and para (53) reads as under:- "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in State of Mysore v. S.V. Narayanappa , (1967) 1 SCR 128 , R.N. Nanjundappa v. T. Thimmiah , (1972) 1 SCC 409 , and B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507 , and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 14. In view of the aforesaid discussion, we find no illegality, impropriety or perversity in the order passed by the learned Tribunal and, therefore, there being no merit in this petition, the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.