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2017 DIGILAW 1024 (HP)

State of Himachal Pradesh v. Khub Chand

2017-09-05

AJAY MOHAN GOAL, SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol J. 1. CMP(M) No. 1180 & Review Petition No. 76/2017 Sh. A.C. Sharma, P.C.C.F. (Finance) is present in Court. 2. Filing of review petition is reflective of the insensitive attitude of the officers of the State, apart from the fact that the action is totally contrary to the settled principle of law and the litigation policy of the State. 3. The brief background leading to the filing of the present petition. Khub Chand (respondent herein), who was engaged as a workman, feeling aggrieved of the actions of the functionaries of the State, in giving intermittent beaks in service, during the period June, 1998 to March, 2001 as also his disengagement, oral in nature, was compelled to take recourse to remedies in accordance with law. The Industrial Tribunal-cum-Labour Court, Dharamshala, H.P., vide award dated 18.06.2011, passed in Reference No. 468/2008, titled as Shri Khub Chand v. The Divisional Forest Officer, directed re engagement of the workman with continuity in service and seniority from the date of illegal termination, which was so held to be w.e.f. April, 2004. However, workman was held not entitled to back wages. The State was also directed not to give fictional breaks in future. 4. It is not in dispute that the award attained finality and was acted upon by the State. 5. Aggrieved of the fact that State did not consider the case of the workman for regularization w.e.f. 01.01.2006, with the workman having completed eight years of daily wage service, he approached this Court by way of CWP (under Article 226 of the Constitution of India) No. 5128 of 2014, titled as Khub Chand v. State of Himachal Pradesh and others, which came to be disposed of with the passing of following order dated 23.09.2014:- "Reply not filed. Right to file reply is closed. Petition is disposed of at the admission stage. 2. Petitioner was engaged as daily wage Belder in the year 1998 in Suket Forest Division, Sundernagar, District Mandi. He was terminated. He raised industrial dispute. The matter was referred by the State Government to the Industrial Tribunal-cum-Labour Court vide Reference No. 468/2008. The reference was allowed partly. Respondents were directed to re-engage the petitioner forthwith. He was held entitled to continuity in service and seniority from the date of his illegal termination though except back wages. He was terminated. He raised industrial dispute. The matter was referred by the State Government to the Industrial Tribunal-cum-Labour Court vide Reference No. 468/2008. The reference was allowed partly. Respondents were directed to re-engage the petitioner forthwith. He was held entitled to continuity in service and seniority from the date of his illegal termination though except back wages. Respondents have regularized the persons, who were admittedly junior to the petitioner as per details given in para 9 of the petition. Respondents were also required to consider the case of the petitioner in conformity with the award dated 18.6.2011. Petitioner has completed eight years in the year 2006. 3. Accordingly, the writ petition is allowed. Respondents are directed to consider the case of the petitioner for regularization immediately after the completion of eight years' of service in conformity of award dated 18.6.2011 in Reference No. 468/2011 within a period of eight weeks from today. Pending applications, if any, also stands disposed of. No costs." 6. It is not in dispute that even this order has attained finality, inasmuch as vide communication dated 17.12.2015 (Annexure P-8) State has issued an order regularizing the services w.e.f. 28.12.2015, which, though according to him, in terms of the directions issued by this Court, ought to have been w.e.f. the year 2006. 7. Aggrieved of the same, workman filed an Execution Petition, which came to be disposed of vide order dated 07.05.2016 in the following terms:- "Ms. Urvarshi Thakur, A.C.F., Suket Forest Division, Sundernagar is present in Court. The only surviving issue is with regard to the date from which the petitioner is to be regularized in terms of the judgment passed by this Court in CWP No. 5128/2014, titled as Khub Chand v. State of Himachal Pradesh, on 23.9.2014. Under instructions from Ms. Urvarshi Thakur, A.C.F., Suket Forest Division, Sundernagar, Mr. J.K. Verma, learned Deputy Advocate General states that the judgment in question shall be positively complied with within a period of four weeks. The State shall ensure disbursement of monetary benefits, as may be found due and admissible. As such, petition stands disposed of, so also, pending applications, if any. Copy dasti." 8. Despite the same, respondents refused to take appropriate action, forcing the workman to file a subsequent execution petition. 9. Sh. A.C. Sharma, Principal C.C.F. (Finance) is present in Court. Under instructions, Mr. As such, petition stands disposed of, so also, pending applications, if any. Copy dasti." 8. Despite the same, respondents refused to take appropriate action, forcing the workman to file a subsequent execution petition. 9. Sh. A.C. Sharma, Principal C.C.F. (Finance) is present in Court. Under instructions, Mr. J.K. Verma, learned Deputy Advocate General, states that even though the Law Department had opined implementation of the judgment dated 23.09.2014, in letter and spirit, yet the Finance Department opined filing of the instant review petition. 10. We are unable to fathom as to how the Finance Department could sit over the opinion of the Administrative Department of the workman, which in fact, had directed implementation of the judgment and their opinion supported by the Secretary Law. In CWP No. 2536 of 2016, this Court has already deprecated such practice. It appears that the Finance Department, without proper application of mind or for want of cogent material and sustainable reasons is repeatedly forcing a poor workman to litigate for getting his legitimate right and dues. 11. On 24.07.2017, while disposing of CWP No. 1498 of 2017, titled as State of H.P. & another v. Raju Ram, we had opined as under: "4. State of Himachal Pradesh has formulated a Litigation Policy, which it is duty bound to follow. 5. The said Litigation Policy came to be introduced, acknowledging that:- (a) litigation is generally believed to be an unproductive investment both in time and money; (b) Government has to conserve the resources, determine priorities of expenditure by a judicious approach so that unproductive litigation does not eat away a large chunk of the scarce resources; (c) The officer who initiates litigation is so much involved into it that his work as an employee suffers; (d) litigation contributes to the docket explosion; and (e) avoidable litigation pursued relentlessly, discloses managerial failure. 6. The object of the Litigation Policy reads as under: "The Policy outlines the broad guidelines on litigation strategies to be followed by the State Government or its agencies with a view to reduce litigation, saving avoidable costs on unproductive litigation, reducing avoidable load on judiciary with respect to government induced litigation and thus realising the promise of Article 39A of the Constitution, which obligates the State to promote equal justice and provide free legal aid." 7. By virtue of clause 1.4 (d to h), the State is under an obligation to avoid litigation, wherever possible and not to file appeal unless the State or its agency believes that it has reasonable prospects for success or the appeal is otherwise justified in public interest, which in the instant case, we have found none. 8. In fact clause (2) of the Litigation Policy mandates formulation of Committees for monitoring the litigation. A High Powered Committee, at the highest level, is under an obligation to monitor the implementation of the Policy and hold the delinquent accountable and responsible. 9. Clause (4) lays down the practices to be adopted for achieving the object of the Policy, in the following terms: "(iii) Litigation between government departments/agencies is to be avoided at all costs. For amicable settlement of disputes between departments, a suitable mechanism for resolution will be established under the Chairperson-ship of the Chief Secretary who will settle these inter departmental issues/disputes after hearing the concerned departments/agencies. (iv) Employees Grievance Redressal Mechanism with respect to grievances of the employees will be set up in every department which ensures that employees do not have to resort to litigation, as far as possible. The decisions of this mechanism shall be binding upon the government in so far as individual grievances, not having a larger implication for other employees of the department/other departments, are concerned." 10. It is in this backdrop, we find that the instant petition came to be filed, without due and proper application of mind and dehors the State Litigation Policy. 11. Under these circumstances, we direct the Chief Secretary to the Government of Himachal Pradesh to convene a meeting of the Principal Secretaries of the Government of Himachal Pradesh, in apprising them of the existence, importance, significance, advantages and benefits of adhering to the Litigation Policy, in letter and spirit. In turn, it is expected of the Principal Secretaries to convene a meeting in their respective Departments, sensitizing the stakeholders with regard thereto. This would only help curtail the problem of docket explosion and prevent cause any unnecessary inconvenience and expenditure by innocent persons. 12. We further direct the Chief Secretary as also the Principal Secretaries to the Government of Himachal Pradesh to have all the cases reviewed, periodically, in terms of the H.P. State Litigation Policy. This alone would generate lot of good will to the State. 12. 12. We further direct the Chief Secretary as also the Principal Secretaries to the Government of Himachal Pradesh to have all the cases reviewed, periodically, in terms of the H.P. State Litigation Policy. This alone would generate lot of good will to the State. 12. Yet the State has filed the instant review petition on 29.08.2017 and that too after a period of three years (approximately). It appears that the mighty State is hell-bent in not according benefits to a poor workman, who stands pushed and compelled to take recourse to remedies for enforcement of his legal right. 13. We also see no reason to condone the delay. Significantly in the application seeking condonation of delay, it stands averred that in the year, 2015 itself reference was made to the Government and even then the Department of Law had opined that judgment be implemented without "any further delay". Further Departmental Scrutiny Committee decided to accord the benefits with effect from the year, 2015, though it was found that the workman was entitled for regularization w.e.f. 27.10.2009. The application is conspicuously silent as to why no review of the order was sought in the year, 2015 itself. It appears that only when the workman filed the second execution petition, the Finance Department took objection and recommended filing the instant review petition. This to our understanding does not disclose reasons sufficient enough to condone the delay. Hence, even on this count, we see no reason to allow the application. Accordingly the same is also dismissed. 14. In our considered view, State has not made any case for interference with the directions issued by this Court vide judgment dated 23.09.2014, in CWP No. 5128 of 2014, titled as Khub Chand v. State of Himachal Pradesh & others. 15. Keeping in view the principles laid down in Kamlesh Verma v. Mayawati and others, (2013) 8 SCC 320 , present petition, being devoid of merit, is dismissed with costs quantified at Rs. 25,000/-. 16. Pending applications, if any, also stand disposed of.