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Himachal Pradesh High Court · body

2019 DIGILAW 1099 (HP)

Krishna Devi v. BBMB through its Chairman

2019-08-05

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, Judge (Oral): By way of this petition, the petitioner has prayed for issuance of a writ of mandamus to the respondent-Board to regularize her services as a Sweeper from the due date, with all benefits incidental thereof. 2. Case of the petitioner is that she is serving as a Part Time Sweeper with the respondent-Board at Sunni w.e.f. 22.09.1989. Till date, her services have not been regularized in spite of her repeated requests, which amounts to unfair labour practice on the part of the respondent-Board, as engaging workmen on Daily Wage/Part Time/Badli basis for years together is in contravention of Schedule-V of the Industrial Disputes Act, 1947. As per the petitioner, in the State of Himachal Pradesh, Part Time Workers, who have completed eight years of service have been brought on Daily Wage establishment and the said formula/Policy would be applicable even to the Management of the respondent-Board, as it is having its offices within the jurisdiction of the State of Himachal Pradesh and as a model employer, respondent-Board is to adopt the said Policy. 3. Respondents No. 1 to 3 have denied the claim of the petitioner by filing a common reply. It is mentioned in the reply that Hydro-meteorological stations of the respondent-Board are in operation in Satluj Catchment area for measurement of Hydrometeorological data under Hydrology Division, BBMB, Nangal, for which regular employees work in one shift of eight hours each in order to observe and communicate the data of discharge of water from various sites to control stations at Nangal and Chandigarh. According to the respondents, the Board was maintaining its offices and residential accommodations for staff including about four quarters and offices of Junior Engineer & Wireless at Rampur, Sunni and Berthin. In these three stations, Part Time Sweepers were deployed, as Board was not having any full time job requirement. After the commissioning of Kol Dam by NTPC Authorities, discharge site at Sunni has submerged under water in Kol Dam Reservoir and BBMB has stopped all discharge measurements and data communication arrangements at Sunni discharge site from 01.03.2015 onwards. As a result thereof, the services of regular staff earlier at Sunni were being utilized at other stations having vacancy except for one Gauge Reader for observing only rainfall data with rain gauge installed and a Part Time Sweeper for cleanliness of BBMB residential and office complex at Sunni. As a result thereof, the services of regular staff earlier at Sunni were being utilized at other stations having vacancy except for one Gauge Reader for observing only rainfall data with rain gauge installed and a Part Time Sweeper for cleanliness of BBMB residential and office complex at Sunni. Nagar Parishad, Sunni had shown interest in hiring BBMB Building and the case had been forwarded to the higher authorities in the Board for approval and in case the said proposal was implemented, then in that event, respondent-Board will not have any job requirement of Part Time Sweeper at Sunni and in such an eventuality, the services of the petitioner shall be dealt with in accordance with law. 4. By way of rejoinder, the petitioner has reiterated that in terms of the Policy of the Government of Himachal Pradesh, the petitioner is liable to be conferred the status of a Daily Wager after completion of 10 years of service and for regularization thereafter. 5. I have heard learned counsel for the parties and have also gone through the pleadings as also the documents appended therewith. 6. Before proceeding further, it is relevant to mentione that keeping in view the prayer of the petitioner, vide order, dated 10.06.2019, this Court had observed that it would be in the interest of justice in case the respondent-Board comes up with some Policy of either regularizing the services of the petitioner or converting her services at least to the status of a Daily Wager, so that the petitioner, who has spent a substantial period of her life in the service of the respondent-Board, has some sense of security as far as her job is concerned. For the said purpose, the case was ordered to be listed today. 7. Learned Senior Counsel informs the Court that the respondent-Board has no Policy to convert the status of Part Time Worker to that of Daily Wager and therefore, the case be heard on merit, as Board was not contemplating to formulate any such policy in near future. 8. The petitioner has appended as Annexure P-1 alongwith the petition copy of appointment letter, dated 28.09.1989, vide which, she was appointed as a Part Time Sweeper at Sunni BBMB Colony of the respondent-Board w.e.f. 01.10.1989. A perusal of the said letter demonstrates that appointment of the petitioner was as a Part Time Sweeper. 8. The petitioner has appended as Annexure P-1 alongwith the petition copy of appointment letter, dated 28.09.1989, vide which, she was appointed as a Part Time Sweeper at Sunni BBMB Colony of the respondent-Board w.e.f. 01.10.1989. A perusal of the said letter demonstrates that appointment of the petitioner was as a Part Time Sweeper. It is her own case that till date, she is working as a Part Time Sweeper. The prayer made by her for issuance of a writ of mandamus to the respondent-Board to regularize her services, in my considered view, cannot be granted. This Court is not oblivious to the fact that the petitioner has been serving the respondent-Board as a Part Time Sweeper since the year 1989, however, it is settled law that in exercise of its writ jurisdiction, High Court cannot direct the employer to regularize the services of an employee, especially when the initial engagement of the incumbent is through back-door or in other words not through a process of recruitment by way of notice to the general public. 9. This Court realizes that the petitioner is working as a Part Time Sweeper, yet fact of the matter remains that in the absence of their being any Policy of the respondent- Board of either converting its Part Time Workers as Daily Wage Workers or regularizing their services, the Court cannot pass any directions to the respondent-Board in this regard. Of course, had there been any such Policy of the respondent-Board and if the petitioner was being discriminated by the Board as far as the implementation of the Policy is concerned, then obviously this Court would have come to the rescue of the petitioner. However, in the absence of any such Policy, no relief, as prayed for, can be granted in favour of the petitioner. 10. As far as the contention of learned counsel for the petitioner that as the place where the petitioner is posted is within the State of Himachal Pradesh, therefore, the Policy of the Government of Himachal Pradesh with regard to bringing Part Time Workers on Daily Wage establishment is ipso facto applicable upon respondent-Board is concerned, in my considered view, the same is totally misplaced and unsustainable in law. 11. Bhakra Beas Management Board owes its origin to the Punjab Reorganization Act, 1966. It is a statutory Board. 11. Bhakra Beas Management Board owes its origin to the Punjab Reorganization Act, 1966. It is a statutory Board. There exists Bhakra Beas Management Board Rules, which have been framed by the Central Government in exercise of powers conferred by Section 97 of the Punjab Reorganization Act, 1966. The services of the employees of the Board are governed by the Regulations which have been framed by the Board under Sub-section(9) of Section 79 of the Punjab Reorganization Act, 1966. Simply because a few offices of the said Board are situated within the territorial jurisdiction of the State of Himachal Pradesh, this does not mean that the Rules which have been framed by the Government of Himachal Pradesh governing the service conditions of its employees shall apply to the establishment of the Board situated within the State of Himachal Pradesh. Even the Policies of regularization/ bringing Part Time Workers on Daily Wage establishment etc. of the Government of Himachal Pradesh cannot be said to be ipso facto binding upon the Board with regard to those establishment of it which are situated within the State of Himachal Pradesh. Respondent-Board is an independent statutory entity and framing of Policies etc. which shall regulate the service conditions of its employees, is the prerogative of the Board and the same are applicable and binding upon its employees irrespective of the fact as to in which part of the country they are serving. The service conditions framed by the employer are not subservient to the service conditions of the Government of the place where the office of the employee is situated, especially when the employer happens to be a statutory Board, which has its own statutory Regulations governing the service conditions etc. of its employees and workmen. 12. Accordingly, this petition is disposed of by holding that though this Court cannot issue a writ of mandamus directing the respondent-Board to either bring the services of the petitioner on Daily Wage establishment or to regularize her services in the absence of their being any such Policy of the respondent-Board, however, keeping in view the peculiar facts and circumstances of the case, the respondent-Board may again sympathetically reconsider as to whether the services of the petitioner can be converted to the status of a Daily Wager and whether she can be called upon to serve at any other place where work is available with the respondent-Board. Miscellaneous applications, if any, also stand disposed of.