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2024 DIGILAW 142 (HP)

Hari Singh v. State of Himachal Pradesh

2024-02-29

RANJAN SHARMA

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JUDGMENT : Ranjan Sharma, J. The petitioner has filed the instant writ petition with the following prayers:- “(i) That the respondents may kindly be directed to consider the case of the petitioner for regularization/grant of work charge status after completion of 10 years’ service i.e. from the year 2010 with all consequential benefits including the arrear of salary etc. (ii) That the respondents may kindly be directed to condone the fictional breaks given by the respondents from time to time.” 2. The petitioner was engaged as Chowkidar on daily wage basis in the year 1991. His services were disengaged orally in May, 1993. Pursuant to a settlement, the respondents reengaged the petitioner in October, 1993. Thereafter, the petitioner was again disengaged in April, 2000. On disengagement, the petitioner served a legal notice on 04.07.2002, but of no avail. Thereafter, the petitioner approached H.P. Administrative Tribunal in O.A. No.2903 of 2002 [Annexure P-3], whereby, the erstwhile Tribunal directed the petitioner to make a representation to the appropriate authorities as per orders dated 12.11.2002. 3. As a sequel to the directions passed by the Tribunal on 12.11.2002, the petitioner served a legal notice on 07.05.2003 [Annexure P-4], but in vain. 4. Ultimately, the petitioner was reengaged on 01.07.2003, but was again disengaged on 16.06.2004, against which the petitioner raised an industrial dispute, which was referred for adjudication by Industrial Tribunal-cum-Labour Court, on 03.07.2006 [Annexure P-5]. 5. The Industrial Tribunal-cum-Labour Court, Shimla, answered Reference No.94 of 2006, on 07.07.2009 [Annexure P-6], which reads as under:- “Since I have held under issue no.1 above that the termination of services of the petitioner by the respondents without following with the provisions of Industrial Disputes Act, 1947 is not proper and justified, hence the petitioner is held entitled to reinstatement in service alongwith seniority and continuity from the date of his illegal termination. However the petitioner is not entitled to back wages as he has not place any material on record to substantiate that he was not gainfully employed after his termination. Accordingly, issue no.2 is decided in favour of the petitioner and against the respondent. As a sequel to my above discussion and findings on issue No.1 to 3, the claim of the petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity from the date of his illegal retrenchment i.e. w.e.f. 16.6.2004. As a sequel to my above discussion and findings on issue No.1 to 3, the claim of the petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity from the date of his illegal retrenchment i.e. w.e.f. 16.6.2004. However, the petitioner is not entitled to back wages as he has not placed any material on record to substantiate that he was not gainfully employed after his termination and as such the reference is ordered to be answered in affirmative. Let a copy of this award be sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records.” 6. A perusal of the Award dated 07.07.2009 [Annexure P-6] reveals that the respondents were directed to reinstate the petitioner in service forthwith with seniority and continuity from the date of his illegal retrenchment i.e. w.e.f. 16.06.2004. However, while passing the Award, the back wages were denied to the petitioner. 7. In pursuance to the Award dated 07.07.2009 [Annexure P-6], the respondents reinstated/reengaged the petitioner on 20.07.2009 and thereafter the petitioner is continuing in service of the respondents. 8. In the background of the above facts, the grievance of the petitioner is that once the petitioner was disengaged from service on 16.06.2004 and pursuant to the industrial dispute so raised and the Award passed on 07.07.2009 [Annexure P-6] and the termination was set aside and the petitioner was directed to be reinstated in service with seniority and continuity from the date of illegal retrenchment w.e.f. 16.06.2004. 9. In this background, learned counsel for the petitioner, submits that for all intents and purposes, the petitioner is deemed to be in service [at-least for the purposes of continuity in service seniority] w.e.f. 16.06.2004. In this background, it is submitted that from 16.06.2004, till his actual reinstatement on 20.07.2009 and thereafter, the entire period is to be counted as continuous service period of the petitioner, so as to consider his case for work charge status or regularization, as the case may be. Learned counsel for the petitioner further submits that this benefit has been denied by the respondents, resulting in depriving of the petitioner of the benefit of deemed service w.e.f. 16.06.2004 and the actual service thereafter from 20.07.2009 till day. 10. Learned counsel for the petitioner further submits that this benefit has been denied by the respondents, resulting in depriving of the petitioner of the benefit of deemed service w.e.f. 16.06.2004 and the actual service thereafter from 20.07.2009 till day. 10. The respondents have filed the reply on the affidavit of Conservator of Forests, Nahan Forest Circle, District Sirmour. 11. A perusal of the reply reveals that the respondents have admitted the passing of the Award in favour of the petitioner on 07.07.2009 [Annexure P-6], whereby, disengagement of the petitioner from service on 16.06.2004 was set aside. However, a perusal of the reply further reveals that the respondents have not given any justifiable reasons as to why the period from the date of illegal termination on 16.06.2004, on setting aside of said termination, is not to be counted as continuous service with seniority. Even a perusal of man-days Chart [Annexure R-V], reveals that the respondents have shown the working days of the petitioner as ‘zero’ in the years 2005 and 2006; meaning thereby that the intend and directions in the Award dated 07.07.2009 [Annexure P-6], still remains un-implemented by the respondents. 12. Heard Mr. Nishant Khidtta, vice counsel for the petitioner and Mr. Rajan Kahol, learned Additional Advocate General, for the respondents. 13. On considering the facts in entirety, this Court is of the considered view that once the services of the petitioner were disengaged orally in violation of law on 16.06.2004 and this disengagement was assailed, by way of a demand notice, leading to Reference No.94 of 2006, which was adjudicated by way of an Award dated 07.07.2009 [Annexure P-6], then, once the Industrial Tribunal-cum-Labour Court, quashed the termination dated 16.06.2004 and directed the respondents to reinstate the petitioner forthwith with seniority and continuity in service from the date of illegal retrenchment i.e. 16.06.2004, this Court sees no reason as to why the petitioner should not be treated to be in deemed service w.e.f. 16.06.2004 for all purposes i.e. continuity in service and seniority, except back wages and such period is to be treated as continuous service period, followed by actual service rendered on reinstatement after passing of the Award on 20.07.2009 for all purposes. That being so, the petitioner is entitled to be treated as an employee on the basis of deemed service w.e.f. 16.06.2004 for all purposes. 14. That being so, the petitioner is entitled to be treated as an employee on the basis of deemed service w.e.f. 16.06.2004 for all purposes. 14. The petitioner cannot be denied the benefits flows from the award dated 07.07.2009 (Annexure P-6) when award has attained finality and has not been assailed further by the State authorities. Further, the denial of benefits results in obliterating the past service w.e.f. 16.06.2004 till reengagement in July, 2009 despite the directions by the adjudicatory forum i.e. the Industrial Tribunal-cum-Labour Court in the Award dated 07.07.2009. Moreover, the action of the State Authorities amounts to rendering the Award dated 07.07.2009 nugatory and redundant, which cannot be permitted in any manner. Even if the petitioner stands regularized in the year 2017 then also, the grant of continuity in service from 2004 will entitle him to be considered for conferment of work charge status on completion of eight years daily wage continuous service w.e.f. 01.01.2013 instead of the benefit being given from 2017, which will result in depriving the petitioner of the higher pay scale, higher pay fixation and final benefits also, which cannot be permitted to be undone by the respondents and therefore, the action of the respondents in not giving effect to the Award dated 07.07.2009 suffers from arbitrariness and illegality. 15. Accordingly, the respondents are directed to treat the petitioner to be in “deemed-continuous service w.e.f. 16.06.2004 till regularization in July, 2009 and thereafter as daily wager till his regularization on 08.06.2017 [Annexure P-10]; and based on such deemed continuous service w.e.f. 16.06.2004, re-consider the case of the petitioner for grant of work charge status or regularization [as the case may be w.e.f. 01.01.2013 or date from which immediate junior was given their benefits, in accordance with the applicable policies, on completion of eight years of continuous service, as the case may be, with all consequential benefits. 16. It is made clear that even if the petitioner has already been regularized in the year 2017, then also, the respondents shall consider the case of the petitioner for grant of work charge status, from due date on completion of eight years continuous service, with all benefits. 16. It is made clear that even if the petitioner has already been regularized in the year 2017, then also, the respondents shall consider the case of the petitioner for grant of work charge status, from due date on completion of eight years continuous service, with all benefits. However, it is made clear that once the Award was passed on 07.07.2009 [Annexure P-6], but the petitioner has approached this Court in 2023 [i.e. 26.09.2023], therefore, the respondents upon consideration, shall extend all benefits, but actual monetary benefits shall be regulated/restricted for a period of three years only, prior to the filing of the instant writ petition on (26.09.2023), if any, in terms of the mandate of law in case of Union of India versus Tarsem Singh (2008) 8 SCC 648 ; Shiv Dass versus Union of India and Others; (2007) 9 SCC 274 ; State of Madhya Pradesh and Others versus Yogendra Shrivastava (2010) 12 SCC 538 and Asger Ibrahim Amin Versus Life Insurance Corporation of India (2016) 13 SCC 797 , followed in Rushibhai Jagdishchandra Pathak versus Bhavnagar Municipal Corporation CA No.4134 of 2022 [2022 SCC Online S C 641] decided on 18.05.2022. 17. In the aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.