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2020 DIGILAW 634 (HP)

Roshan Lal v. State of Himachal Pradesh

2020-09-23

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - (Through Video Conferencing) Precisely, the facts which are relevant for adjudication of the case, as emerge from the pleadings adduced on record by the parties, are that petitioner was engaged as Beldar on daily wage basis in the month of September, 1987 and as such, he continued to serve the department till the year 1992, whereafter, break in service was given to him. Though, petitioner was re-engaged in the year 1998, but since his services were retrenched on 4th June, 2001 without complying with the provisions contained in Industrial Disputes Act, he raised an industrial dispute. Since, conciliation inter se parties failed, the appropriate Government made a reference bearing No. 21 of 2004, to Himachal Pradesh Industrial Tribunal-cum-Labour Court, however, the fact remains that claim of the petitioner was rejected by the Industrial Tribunal-cum-Labour Court and as such, he was compelled to approach this Court by way of CWP No. 2669 of 2008, laying therein challenge to the award passed by the Industrial Tribunal. The Division Bench of this Court vide judgment dated 1.7. 2010, set aside the award dated 20.7.2007, passed by the Industrial Tribunal-cum-Labour Court and held petitioner to be in continuous service as daily waged Beldar under the respondents. While holding the petitioner to be in continuous service as daily wage Beldar, this Court held the petitioner not entitled for back-wages. 2. It appears that even after passing of the aforesaid judgment, respondents failed to re-engage the petitioner and as such, he was compelled to file the contempt petition before this Court, however, during the pendency of the contempt petition, an office order dated 11.5.2011 was issued by respondent No.2, whereby the services of the petitioner were regularized as Beldar in the pay scale of Rs. 4900-10680 (Annexure A-2). 4900-10680 (Annexure A-2). Since, vide order date 11.5.2011, respondents did not regularize the services of the petitioner w.e.f. 1998, when he completed his 10 years regular service from the date of his initial appointment, he was compelled to approach the erstwhile Himachal Pradesh State Administrative Tribunal by way of filing O.A. No. 1372 of 2015, which now stands transferred to this Court and re-registered as CWPOA No.5174 of 2019, praying therein following substantive reliefs:- "(i) That respondent may kindly be directed to regularize the services of the applicant w.e.f. the year 1998, i.e. immediately on completion of his 10 years daily waged services as Beldar or in the alternative, in the above of any vacancy, to confer the work charge status upon the applicant,w.e.f. year 1998 upto the date of regularization. (ii) Respondents may kindly be directed to grant consequential benefit like seniority to the applicant w.e.f. the year 1998." 3. Having heard learned counsel appearing for parties and perused material available on record, this Court finds considerable force in the claim of the petitioner that since he was held to be in continuous service w.e.f. July 1987 vide judgment dated 1.7.2010, passed by Division Bench of this Court in CWP No. 2669/2008, his services are required to be regularized w.e.f. September, 1997. 4. Mr. Sunny Dhatwalia, learned Assistant Advocate General, while justifying the action of the respondent in regularizing the services of the petitioner w.e.f. 11.5.2011, contends that since it stands duly established on record that petitioner did not render any service between 1992 to 1998, therefore, no benefit can be claimed by him qua the aforesaid period. However, having taken note of the judgment dated 1.7.2010, rendered by the Division Bench of this Court (Annexure A-1), submission made on behalf of the respondents does not appear to be legally correct and deserves outright rejection being devoid of merit. 5. Bare perusal of the aforesaid judgment clearly suggests that very claim of the petitioner before the Division Bench of this Court was that he was engaged as Beldar on daily wage basis in the month of September, 1987 and his services were retrenched on 4.6.2001. Aforesaid plea raised by the petitioner stands duly accepted in the aforesaid judgment passed by the Division Bench of this Court while setting aside the award dated 20.7.2007 passed by the Industrial Tribunal-cum-Labour Court. Aforesaid plea raised by the petitioner stands duly accepted in the aforesaid judgment passed by the Division Bench of this Court while setting aside the award dated 20.7.2007 passed by the Industrial Tribunal-cum-Labour Court. Claim of the respondents, that in the year 1992, petitioner himself abandoned the job and thereafter he was re-engaged in the year 1998, was not accepted by the Division Bench of this Court and as such, same cannot be allowed to be raised again. Mr. Sunny Dhatwalia, learned Assistant Advocate General, fairly admits that the aforesaid judgment rendered by the Division Bench of this Court has attained finality and as such, the order of regularization w.e.f. year 2011, passed in purported compliance of the aforesaid judgment rendered by Division Bench of this Court, deserves to be quashed and set aside. Services of the petitioner deserve to be regularized w.e.f September, 1998 when he completed his 10 years of regular service from the date of his initial appointment in the year 1987. 6. Besides above, petitioner has also prayed for grant of work charge status in his favour from the date he had completed his 8 years of regular service. Though, the aforesaid claim of the petitioner has been sought to be defeated on the ground of delay and laches, as has been submitted in the reply filed by the respondents, however, the Division Bench of this Court in CWP No. 2735 of 2010, titled Rakesh Kumar vs. State of Himachal Pradesh & Ors. has categorically held as under: "6. The simple question is whether the delay defeats justice? In analyzing the above issue, it has to be borne in mind that the petitioners are only class-IV workers (Beldars). The schemes announced by the Government clearly provided that the department concerned should consider the workmen concerned for bringing them on the work-charged category. So, there is an obligation cast on the department to consider the cases of the daily waged workmen for conferment of the work-charged status, being on a work-charged establishment, on completion of the required number of years in terms of the policy. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions." 7. At the best, the petitioners can only be denied the interest on the eligible benefits and not the benefits as such, which accrued on them as per the policy and under which policy, the department was bound to confer the status, subject to the workmen satisfying the required conditions." 7. In view of the law laid down by Hon'ble Apex Court in the judgment (supra), this Court finds that the petitioner being a class IV employee cannot be denied the benefit to which he is legally entitled to, merely on the ground of delay and laches. Delay cannot defeat justice, as has been rightly observed by Hon'ble Court in the judgment (supra) and as such, this Court finds merit in the present petition. 8. Consequently, in view of the above, present petition is allowed and respondents are directed to regularize the services of the petitioner w.e.f. September 1997, when he completed 10 years continuous service from the date of initial appointment made in the year 1987. Besides above, respondents are also directed to grant work charge status to the petitioner from the date he completed eight years continuous daily wage service from the date of his initial appointment in the year 1987, on notional basis, within a period of six weeks. In the aforesaid terms, present petition stands disposed of, so also pending applications, if any.