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Himachal Pradesh High Court · body

2019 DIGILAW 1576 (HP)

Dhani Ram v. Divisional Forest Officer

2019-10-24

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. Reference petition having been dismissed by the learned H.P. Industrial Tribunal-cum-Labour Court, Shimla, instant writ petition has been preferred by the claimant. 2. Following reference was made for adjudication by the appropriate Government:- "Whether the demand notice dated 4.9.2006, raised by the President Bhartiya Mazdoor Sangh, H.P. Shimla on behalf of Shri Dhani Ram s/o Shri Nikku Ram daily wage workman, regarding his regularization in service w.e.f. 1.4.1994, before the Divisional Forest Officer, Kunihar, District Solan, H.P. is legal and justified? If yes, to what seniority, service benefits and relief Shri Dhani Ram workman is entitled to?" 3. 3(i). Claim petition was preferred by the petitioner, asserting that:- (a) He was engaged as daily waged workman in the respondent-department w.e.f. 01.01.1984 to 31.12.1993. (b) Services of the petitioner were orally terminated in February 1994, however, the petitioner was re-engaged on 25.05.1994. (c) Respondents orally terminated the services of the petitioner once again on 12.12.1994. Against his oral termination of services, petitioner preferred O.A. No. 3173 of 1994, wherein learned H.P. State Administrative Tribunal directed the respondents to re-engage the petitioner. (d) Pursuant to these directions passed by learned H.P. State Administrative Tribunal, the petitioner continued in service till his superannuation in the year 2017/2018. The O.A. was eventually disposed off on 19.04.2005 on point of jurisdiction and the petitioner was directed to approach the appropriate Forum. 3(ii) The petitioner has prayed for his regularization in services w.e.f. 01.04.1994, i.e., after alleged completion of 10 years of service w.e.f. 01.01.1994, with continuous service of 240 days in every calender year. This relief was prayed primarily on the basis of judgment passed by Hon'ble Apex Court in Mool Raj Upadhayay vs. State of Himachal Pradesh, (1994) Supp2 SCC 316. The petitioner has also prayed that since juniors to him have been regularized in the concerned Division, therefore, he also deserves to the regularized. 3(iii) Learned Tribunal below returned the finding that it is not proved on the record that petitioner had been continuously engaged w.e.f. 01.01.1984 with the respondents. I am in agreement with the findings that petitioner cannot be said to be in continuous service with the respondents w.e.f. 01.01.1984 as it is the pleaded case of the petitioner that his services were orally terminated time and again in 1994. I am in agreement with the findings that petitioner cannot be said to be in continuous service with the respondents w.e.f. 01.01.1984 as it is the pleaded case of the petitioner that his services were orally terminated time and again in 1994. The year-wise mandays chart produced by the respondents on the record of the case and also appended as Annexure R-1 along with reply filed by respondents No. 1 & 2 reflects that though the petitioner was engaged from 1987 onwards, however, he had not completed 240 days of continuous service in some of these years. In any case, however, his services having been admittedly terminated in 1994, cannot be said to be continuous w.e.f. 1984/1987. Therefore, the petitioner was not entitled to be regularized w.e.f. 01.01.1994. 3(iv)(a) Having heard Ms. Shikha Chauhan, learned counsel for the petitioner and Sh. Anil Jaswal, learned Additional Advocate General, and with their assistance having gone through the record, I am of the considered view that the petitioner deserves to be regularized by treating him to be in continuous service of more than 240 days in each calendar year w.e.f. 1995. Since, the petitioner stands retired without getting the benefit of regularization and facts of case are more or less admitted by documentary and oral evidence, therefore, this exercise is undertaken in peculiar facts and circumstances of the case. The mandays chart of petitioner, appended by the respondents along with their reply, being relevant for adjudication of the dispute is extracted hereinafter:- "Year wise man-days chart of Sh. Dhani Ram s/o Sh. Nikku Ram r/o village Katal, P.O. Shalaghat, Tehsil Arki, Distt. Solan, H.P. Year No. of days Year No. of days Year No. of days Year No. of days 1987 71 2003 289 1988 214 2004 364 1989 353 2005 363 1990 359 2006 328 1991 294 2007 355 1992 355 2008 363 1993 267 2009 359 1994 58 2010 352 1995 266 = 2011 350 1996 366 2012 343 1997 318 2013 343 1998 335 2014 344 1999 305 = 2015 364 2000 272 2016 366 2001 228 2017 upto 08/2017 168 2002 233 ..." 3(iv)(b) The above mandays chart reflects a very sorry state of affairs. The petitioner has continued to render services to the respondents for more than 240 days, w.e.f.1995 till 2017/2018. The petitioner has continued to render services to the respondents for more than 240 days, w.e.f.1995 till 2017/2018. However, he has been denied the benefit of regularization of his services till he retired in 2017/2018. This is despite the fact that he had continuously worked with the respondents from 1995 and served them for more than 240 days in every calendar year. 3(v) The defence taken by the respondents that services of the petitioner could not be regularized because in the year 2001 & 2002, the petitioner did not complete 240 days of service, is fallacious and liable to be rejected for the following reasons:- 3(v)(a) RW-1 Sh. R.S. Jaswal, the Divisional Forest Officer, Kunihar stated that:- As per mandays chart Ext. R-1, petitioner had not completed 240 days in calendar years 2001 & 2002; services of only those daily wagers were regularized, who had completed continuous 240 days of service in previous 8 years; petitioner though was serving with the respondents, but had not completed 240 days in 2001 & 2002; he also admitted that juniors to the petitioner had already been regularized. As per RW-1, the case of the petitioner had been recommended to the Govt. for regularization in 2011. 3(v)(b) It is seen from the statement of RW-1 Divisional Forest Officer that even though, the department had itself recommended the case of the petitioner for regularization of his services in the year 2011, yet, his services were not regularized and he was made to retire in 2017/2018 as a daily wage worker. As per this witness, the only deficiency in case of the petitioner vis-a vis his regularization was alleged non-completion of 240 days by him in calendar years 2001 & 2002. In this regard, statement of PW-2 Sh. Bali Ram becomes relevant. 3(v)(c) PW-2 Sh. Bali Ram, served as Range Officer, Arki, District Solan. He brought the entire service record of the petitioner including the record relevant to the years 2001 & 2002. According to this witness, petitioner was sent to work in 'Sanjhi Van Yojna' at Rampur during the year 2001-2002. As per this witness, the petitioner worked in 'Sanjhi Van Yojna' at Rampur during these two years, however, the record of his mandays, while working in the 'Sanjhi Van Yojna' was not there with the witness. The witness further says that:- juniors to the petitioner S/Sh. As per this witness, the petitioner worked in 'Sanjhi Van Yojna' at Rampur during these two years, however, the record of his mandays, while working in the 'Sanjhi Van Yojna' was not there with the witness. The witness further says that:- juniors to the petitioner S/Sh. Liaq Ram, Beli Ram, Rameshwar, Hem Raj and Baldev had also worked under 'Sanjhi Van Yojna'; the period spent by these juniors in 'Sanjhi Van Yojna' had been added towards their total period of service for completion of 240 days of service. He has further stated that in case the period spent by the petitioner in 'Sanjhi Van Yojna' during the years 2001 & 2002 is added towards his service period, then petitioner would complete much more than 240 days of continuous service in these years. He has further stated that the petitioner had repeatedly requested the concerned authorities of the respondent-department in Ext. P-1 to P-6 for correcting his muster-roll, however, neither their representations were decided nor petitioner was ever informed about the action taken in his such requests. 3(v)(d) Annexure R-VI is a compendium of judgments passed by this Court wherein artificial brakes granted in the service of the petitioner therein were directed to be treated as continuous service without brake. 4. It is the pleaded case of the respondents that petitioner had completed required continuous service of more than 240 days in each calendar year w.e.f. 2003 onwards and accordingly, his case was recommended for regularization in 2011. It is also admitted case of the respondents that juniors to the petitioner stand regularized, whereas services of petitioner were not regularized. In view of the facts emerging from the record, more particularly year-wise mandays chart of the petitioner at Annexure R-1 and the statements of RW-1 & PW-2, grave injustice caused to the petitioner in not regularizing his service is writ large. Even if, the period of service of the petitioner from 1987 to 1994 is ignored then also the petitioner is entitled to count the service rendered by him from 1995 onwards for the purposes of regularization. As per mandays chart at Annexure R-1, appended with the reply filed to the writ petition, but for the years 2001 & 2002, petitioner had rendered more than 240 days of continuous service with respondent w.e.f. 1995 to 2017/2018. In 2001 & 2002 petitioner had completed 228 and 233 days of service respectively. As per mandays chart at Annexure R-1, appended with the reply filed to the writ petition, but for the years 2001 & 2002, petitioner had rendered more than 240 days of continuous service with respondent w.e.f. 1995 to 2017/2018. In 2001 & 2002 petitioner had completed 228 and 233 days of service respectively. In somewhat similar circumstances, this Court in CWP(T) No. 1102 of 2008, titled as Rameshwar Vs. State of H.P. and others, decided on 15.03.2010, held as under:- "Mr. Narender Sharma argued that in fact petition could not complete 240 days in the years 2001 and 2002 since he was deputed by the concerned Officer in Sanjhi Van Yojna. The Court is of the considered view that since petitioner had been working continuously since 1995 and had completed 240 days in each calendar year except in the years 2001 and 2002 with effect from 1995 to 2005, shortfall of 24 days in the year 2001 and 5 days in the year 2002 should have been ignored by respondents while counting continuous service. The Court is dealing with the case of a person, who belongs to lower strata of the society. Relief of regularization cannot be denied only on the ground of shortfall of few days in the years 2001 and 2002. Accordingly, the petition is allowed. Respondents are directed to consider the case of petitioner from the due date after condoning the shortfall of 24 days in the year 2001 and 5 days in the year 2002. Needful be done within a period of 6 weeks from today. No costs." Petitioner in the facts and circumstances of the case, in view of documents on record of the case and the statements of witnesses, is definitely entitled to count the period of service rendered by him in 'Sanjhi Van Yojna' in 2001 & 2002. In such a scenario, total number of days of his continuous service with the respondents in 2001 & 2002 will be come ore than 240 days. Therefore, it is held that petitioner has rendered continuous service of more than 240 days w.e.f. 1995 till his retirement in 2017/2018. 5. In view of the above observations, the impugned award is set aside. Therefore, it is held that petitioner has rendered continuous service of more than 240 days w.e.f. 1995 till his retirement in 2017/2018. 5. In view of the above observations, the impugned award is set aside. Respondents are directed to regularize the service of the petitioner in accordance with the policy applicable at the time after treating the petitioner to be in continuous service for more than 240 days for calendar years 2001 & 2002. Petitioner is held entitled to all the consequential benefits pursuant to such regularization. The entire exercise be completed within a period of two months from today. With these observations, petition stands disposed of along with pending application(s) if any.