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2020 DIGILAW 778 (HP)

Bansi Lal v. State of Himachal Pradesh

2020-10-30

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, J. - Since both the writ petitions are directed, against, the common employer of both the writ petitioners, and, also when in both the writ petitions, the legality of the denial(s) to them, of, the strived for relief, of, theirs being regularized, from their hitherto capacity, as, daily waged workmen, rather against a substantive post, enjoins making(s), of, an adjudication (i) and, also when the apposite denials, as, meted on affidavit, by the respondents, are, similar in both the writ petitions, thereupon, both the writ petitions are amenable, for, a common verdict hence becoming rendered thereon(s). 2. The writ petitioners' contention, as, contained in both the writ petitions, is, hinged upon a bald averment, vis-a-vis, each rendering duties, on a daily waged basis, under, the respondents, (i) and, despite theirs also completing the requisite period, of, qualifying service, for, theirs being regularized against, the apposite substantive post, (ii) rather the respondents proceeding, to, make the apposite impugned Annexures rather wherethrough their services became terminated. 3. Moreover, a common averment, is, also borne in both the writ petitions, in as much, as, the employer concerned rather with malafides administering fictional breaks in their service, (a) conspicuously with a clear intention to preclude them, to, render 240 days of continuous service, in each of the calendar years concerned, and, also obviously when concomitant thereto, legal detriments, became visited upon them, inasmuch as (b) thereupon, the canon appertaining to the requisite period of qualifying service, in the, apposite preceding years, hence with a contemplation, vis-a-vis, in each of the preceding years, each of them, completing 240 days, of continuous service, hence becoming rendered untenably unworkable, vis-a-vis, the workmen/petitioners. 4. As aforestated, all the afore averments, are completely bald, and, obviously are completely bereft of any material, in, support thereof, and, as may become comprised in (a) a certified copy of muster rolls, evidencing the pleaded factum, of, the petitioners becoming enrolled, on muster rolls, under the respondents (b) there occurring signatured entries against their muster rolls hence depictive of theirs' receiving per dime wages, vis-a-vis, the daily waged work(s), as become performed, by each, of them, under, the respondents. 5. 5. Moreover, there exists no iota evidence of material, on record, in support of, an obvious bald contention raised, in both the writ petitions (a) that despite juniors to the petitioners/workmen continuing, to, render work under the respondents, rather, the workmen/petitioners, being through an order, made in the apposite Annexures, being axed from service. Even though the retention, of, workmen, junior to the writ petitioners, after the latters becoming axed, from service, would constitute a starking breach, being visited, upon, the mandate comprised, in, Section 25-G of the Industrial Disputes Act, 1947, (a) hence with a prescription, against the employer to disengage workmen despite juniors to him, theirs becoming retained in service. Nonetheless the afore factum would gather support obviously only upon cogent documentary evidence in support thereof, being placed on record. However, the apposite documentary evidence in support thereof is grossly amiss, and, thereupon the afore made averment, is, starkly bald, and, cannot work with the apposite capitalizing effect, to, the workmen. 6. In addition even if the afore breach became visited, upon, Section 25-G of the Industrial Disputes Act, 1947, (a) thereupon, the remedy for curing the afore breach, is not comprised, in the writ petitioners invoking the writ jurisdiction rather is comprised in theirs raising an industrial dispute, under, the Industrial Disputes Act, (b) and, upon failure of conciliation, theirs seeking a reference, from, the appropriate government, to the Labour Court, cum-Industrial Tribunal, for, hence thereon a decision becoming rendered, by the Labour Court-cum-Industrial Tribunal concerned. 7. Be that as it may, the effect of non-existence, of, the afore imperative evidence, when becomes entwined with, the afore wants or omissions, on, the part of the writ petitioners, to, bring the afore evidence, in record besides when becomes coagulated alongwith, the, unrebutted contentions raised in reply(s), furnished to the writ petitions by the respondents, and, theirs making graphic depictions, of, completest denials, of the afore averments, raised by the writ petitioners, thereupon this Court is coxed to make a firm inference (a) qua the writ petitioners not being enrolled on muster rolls by the respondents (b) rather theirs being employed, as, part time workers, and, (c) theirs receiving wages on an hourly basis, as, evident from the un-rebutted reply(s) furnished, to the writ petitions, by the respondents. 8. 8. Further more, the factum of the respondents, with malafides hence administering fictional breaks, in, the service of the petitioners, rather only for depriving them to complete 240 days of continuous service, in each of the apposite years, alongwith further legal detriments, being visited upon them, (i) inasmuch, as, theirs being defacilitated, to, claim the relief of regularization in service, against, the substantive post, is also, a misraised and misfounded plea, inasmuch as (ii) for lack, of, existence on record, of, certified muster rolls, hence paves way for a conclusion in support, of, unrebutted contention, reared in the reply furnished by the respondents, qua, theirs being engaged, as, part time workers, and, theirs receiving hourly wages, hence thereupon the edifice, of, the afore espousal, as, made before this Court, by the petitioners becomes completely shattered. 9. Further, in the respondents taking to administer malafide fictional breaks in service of the petitioners, despite availability of works, and, even if assumingly they were made to cause, the afore impediments or to raise obstacles, against the petitioners, receiving benefits of regularization in service, (i) also, enjoined existence of material on record, comprised in a circular/order, issued by the respondents, and, its declaring the necessity, of, administering, of, fictional breaks, in, the service of the petitioners. However, the afore order is amiss, and, thereupon the breaks, if any, in the apposite service(s), if administered by the respondents, cannot assume the vice of malafides, rather may be attributable, to abstention, from service of the workmen, (i) and, obviously for settling the afore factum, the remedy available to the writ petitioners, is not through, theirs invoking the writ jurisdiction, rather is to through theirs ensuring, the, making of a reference qua therewith by the appropriate government, to, the Labour Court-cum- Industrial Tribunal concerned. 10. In aftermath the invocation of writ jurisdiction, is, a gross mis-strivings, and, hence no relief can be conferred, upon, the writ petitioners, necessarily hence the writ petitions are dismissed. It is clarified that they may opt to exercise the afore alternate remedy, for, theirs therethrough redressing their grievances, against the employer. All pending applications stand disposed of accordingly. No costs.