Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 645 (HP)

Baldev Raj v. State of Himachal Pradesh

2020-09-24

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Briefly stated facts, as emerge from the record are that initially petitioner was engaged in the respondent-Department as workmen/beldar and in this capacity, he continuously rendered his services in Herbal Garden Jogindernagar, District Mandi, H.P., but since his services came to be illegally retrenched alongwith other similarly situate persons, he alongwith other affected persons raised industrial dispute. Since, conciliation, interse parties failed, appropriate Government while exercising power under Section 10(1) of the Industrial Dispute Act, 1947 made following reference to the Labour Court-cum-Industrial Tribunal for adjudication:- " Whether the action of the Director, Ayurveda, H.P.Shimla-9(2) the Project Officer(Medicinal Plants), Research Institute in ISM, Jogindernagar, District Mandi, Himachal Pradesh to give break in service to Sh.Bhumi Singh son of Sh. Tara Chand, Shri Sansar Singh S/o Himal Singh, Sh. Sarwan Kumar S/o Sh. Rattan Chand, Sh. Hem Singh S/o Sh. Bhargu Ram, Shri Som Nath s/o Sh. Bhagatu, Smt. Shakuntla Devi w/o Shri Kahan Singh, Smt. Bhagwati Devi w/o Shri Nagand and Sh. Deepak S/o Kanahiya workmen from time to time w.e.f. year 1999 and year 2000 during their service period without complying the provisions of the Industrial Dispute Act, 1947 is proper and justified? If not, what relief of break period and service benefits the above aggrieved workmen are entitled to?". 2. Learned Labour Court-cum-Industrial Tribunal, Dharamshala having perused the material adduced on record by the respective parties decided the reference in favour of the petitioner and other workmen, who had raised dispute before Industrial Tribunal vide award dated 28.8.2010 and passed following orders:- " For all the aforesaid reasons discussed above it was to be held that the respondents had been given fictional breaks to the workmen. The said act of the respondents is totally illegal and against the statutory provisions of the Industrial Dispute Act. Consequently, the respondent is directed not to give any fictional breaks to the aforesaid workmen in the future. They shall be entitled to continuity of services from the date of their respective engagement. They shall however not be entitled to any pecuniary benefits for the said period." 3. Consequently, the respondent is directed not to give any fictional breaks to the aforesaid workmen in the future. They shall be entitled to continuity of services from the date of their respective engagement. They shall however not be entitled to any pecuniary benefits for the said period." 3. Respondent-Department being aggrieved and dissatisfied with the aforesaid award dated 28.8.2010 passed by the Labour Court-cum-Industrial Tribunal, approached this court by way of CWP No.299 of 2011, titled as Director Ayurveda, Himachal Pradesh and another vs. The General Secretary Ayurveda Plants Production/Collection Employees Association, Herbal Garden Jogindernagar, District Mandi, H.P., however, facts remains that aforesaid writ petition was dismissed vide judgment dated 1.3.2012, whereafter respondent-Department preferred Review Petition No.45/2013, but same was also dismissed vide judgment dated 23.7.2013. 4. Against the aforesaid judgment passed by the Division Bench of this Court in main matter as well as Review Petition, respondent-Department preferred SLP(C) No.3750- 3751/2016, before the Hon'ble Apex Court, but same was also dismissed on the ground of inordinate delay of 1353 days in filing the SLP. 5. Vide impugned award dated 28.8.2010, which otherwise has attained finality, Tribunal below while directing the respondent not to give fictional breaks to the petitioner as well as other similarly situate persons, specifically ordered that petitioner as well as other similarly situate persons, who had approached Tribunal, shall be entitled to continuity of service from the date of their respective engagement, however they shall not be entitled to any pecuniary benefits for the said period. 6. Now, precise case of the petitioner is that though after passing of aforesaid judgments, he stands regularized but not from the due date. As per the petitioner, since he was appointed on 15.11.1991, his services should have been regularized on 14.11.1999 when he completed eight years regular service. But, since in the case at hand services of the petitioner came to be regularized against the post of beldar vide Office order dated 21.4.2012, petitioner was compelled to approach learned erstwhile Himachal Pradesh Administrative Tribunal by way of OA No.879 of 2018, which now stands transferred to this Court and re-registered as CWPOA No.6061 of 2020, praying therein following reliefs:- "(i) That the respondents may be ordered to regularize the services of the applicant and others from the due dates i.e. from 8 years with all benefits incidental thereof". 7. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds sufficient force in the submissions made by learned counsel representing the petitioner that once Tribunal below vide award dated 28.8.2010 held him entitled to continuity in service from the date of his initial appointment i.e. 15.11.1991, he was entitled for regularization w.e.f.14.11.199, when he had completed eight years regular service. 8. Though, learned Additional Advocate General made an attempt to persuade this Court to agree with his contention that since during the aforesaid period petitioner never completed 240 days in a calendar year, he cannot be given benefit of service, if any, rendered by him during 15.11.1991 to 14.11.1999, but such plea made by him deserves outright rejection because of specific findings returned by learned Labour Court-cum-Industrial Tribunal in its award dated 28.8.2010, whereby Tribunal below while directing the respondent not to give fictional breaks, categorically held that the petitioner would be entitled to continuity of service from the date of his engagement. Aforesaid award rendered by Labour Court-cum-Industrial Tribunal has attained finality up to the Hon'ble Apex Court and as such, it is not open at this stage for the respondent-Department to rake up the issue with regard to non-working of petitioner during 15.11.1991 to 14.11.1999, rather it is under obligation to regularize the services of the petitioner w.e.f. 14.11.1999 taking into consideration his date of initial engagement i.e.15.11.1991. 9. Careful perusal of communication dated Nil (Annexure A-1) issued from the office of Incharge, Research Institute in ISM, Jogindernagar, District Mandi, H.P., reveals that case of the petitioner alongwith other similarly situate persons was duly recommended for regularization w.e.f.14.11.1999 when he had completed eight years regular service. In the aforesaid communication Incharge, Research Institute ISM, Jogindernagar, District Mandi, H.P., has categorically held that on account of dismissal of SLP filed by the respondent-Department petitioner and other similarly situate persons are liable to be regularized from the date when they have completed eight years regular service, but it appears that aforesaid recommendation made by Incharge, Research Institute in ISM, Jogindernagar, District Mandi, Himachal Pradesh has not been paid any heed by the authority concerned. 10. 10. Perusal of order dated 16.2.2019 passed by Director Ayurveda, Himachal Pradesh (Annexure R-IV) in purported compliance of the directions issued by the various courts in the case of the petitioner and other similarly situate persons, suggests that case of the petitioner for regularization w.e.f. 14.11.1999 i.e. when he had completed eight years regular services, has been rejected on very flimsy ground. In the aforesaid order, no specific cogent and convincing reasons has been assigned by the Director while rejecting the claim of the petitioner for regularization from the date when he had completed eight years services, rather reliance has been placed upon the communication dated 10.10.2014, issued by the Department of Finance, wherein it has been opined/re-affirmed that there is no provision for regularization from back date. Reasons assigned in the aforesaid order passed by the Director Ayurveda deserves outright rejection being wholly untenable because case of the petitioner could not be considered/decided in light of the clarification/opinion if any, issued by the Department of Finance, especially in view of the specific findings returned by the various courts of law. 11. True, it is that one cannot claim regularization from the date of his initial engagement but definitely he/she is entitled for regularization from the date when he /she completed required period of 8/10 years, as provided under the various policies framed by the Government of Himachal Pradesh for regularization of such employees. Since, there is no dispute that petitioner has already completed eight years regular service, he cannot be denied such benefit on the ground that there is no provision for regularization from back date. Otherwise also, in the case at hand petitioner is not claiming regularization from the back date, rather he has claimed regularization from the date when he had completed eight years regular service from the date of his initial appointment which claim of his is otherwise cannot be rejected, especially when it stands duly provided in the policy framed by the Government from time to time that workmen/daily wage employee shall be entitled for regularization after completion of 8/10 years regular service. Since, now in the case at hand it is not open for the respondent to claim that petitioner did not render eight years regular service between 15.11.1991 to 14.11.1999 because of specific findings returned by the Industrial Tribunal in its award dated 28.8.2010, petitioner is entitled for regularization w.e.f.14.11.1999. 12. Since, now in the case at hand it is not open for the respondent to claim that petitioner did not render eight years regular service between 15.11.1991 to 14.11.1999 because of specific findings returned by the Industrial Tribunal in its award dated 28.8.2010, petitioner is entitled for regularization w.e.f.14.11.1999. 12. Consequently, in view of the above, this Court finds merit in the present petition and accordingly same is allowed. The order dated 16.2.2019, passed by the Director Ayurveda (Annexure R-IV) is quashed and set-aside. The Director Ayurveda is directed to regularize the services of the petitioner w.e.f.14.11.1999, but since petitioner has not been held entitled for back wages by the Tribunal below, he shall not be entitled for back wages. Pending applications, if any, also stand disposed of.