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2025 DIGILAW 1041 (HP)

Bhoop Singh v. State of H. P.

2025-05-16

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. The instant petition has been filed for the following substantive reliefs: (i) That the directions may kindly be issued to the respondents to regularize the services of the petitioner on completion of 8 years service from the year, 2003 as Beldar in view of the policy of regularization and in view of the judgment of the Rakesh Kumar (supra), immediately with all consequential benefits. (i)(a) That the impugned office order dated 12.11.2020, Annexure P-6, issued by the Divisional Forest Officer, Kunihar Forest Division i.e respondent No.2, may kindly be quashed and set aside, being illegal and arbitrary. (ii) That the respondents may also be directed to count the period during 2001 & 2002 spent by the petitioner under Sanjhi Van Yojna at Rampur for the purpose of completion of 240 days at par with other similar situate persons.” 2. The petitioner was engaged as daily wage Beldar under Kunihar Forest Division in the year 1984. Petitioner remained on daily wages till his retirement. According to the petitioner, he has retired on 30.06.2016, but the respondents have stated the date of retirement of the petitioner to be 30.06.2014. 3. The petitioner has been fighting for regularization of his services under the regularization policy of the State Government. According to petitioner, he had completed eight years of continuous daily wage service with 240 days in each calendar year and had thereby become eligible for regularization but the respondents had wrongfully denied the benefit of regularization policy to him. 4. The petitioner in the first instance raised an industrial dispute in the year 2006 seeking regularization of his service on completion of ten years w.e.f. 01.01.1994. The appropriate authority made a reference to the Industrial Tribunal-cum-Labour Court, Shimla registered as reference No. 4 of 2009. The Industrial Tribunal-cum-Labour Court, Shimla answered the reference in negative vide award dated 03.09.2014 by holding that the petitioner had not completed continuous daily wage service of eight years between 1984 to 1994. The petitioner assailed the award dated 03.09.2014, passed by Industrial Tribunal-cum-Labour Court, Shimla before this Court by way of CWP No. 7554 of 2014. The said writ was dismissed on 28.2.2019, however, liberty was reserved in favour of the petitioner to make a claim for regularization by availing an appropriate mechanism only with respect to the years following 1994. 5. The petitioner assailed the award dated 03.09.2014, passed by Industrial Tribunal-cum-Labour Court, Shimla before this Court by way of CWP No. 7554 of 2014. The said writ was dismissed on 28.2.2019, however, liberty was reserved in favour of the petitioner to make a claim for regularization by availing an appropriate mechanism only with respect to the years following 1994. 5. The petitioner then filed OA No. 2436 of 2019 before the Erstwhile State Administrative Tribunal. Learned Tribunal disposed of the said Original Application in following terms: 6.“ In view of the above, the original application is disposed of in terms of the aforementioned judgment in CWP No. 2735 of 2010 and the connected matters and keeping in view the fact that the applicant had put in more than 240 days in each calendar year beginning from 2003 to 2013, with a direction to the respondents/competent authority, that subject to the above verification and on finding the applicant to be similarly situate as above, benefit of the said judgment, if the same has attained finality/implemented, shall be extended to him alongwith consequential benefits, if any, as per law, within three months from the date of production of certified copy of this order before the said authority by the applicant.” 6. In compliance, the Divisional Forest Officer, Kunihar Forest Division passed an office order dated 12.11.2020 (Annexure P-6) and thereby rejected the case of the petitioner on the ground that since the H.P. Forest Department was not a work charge establishment, the case of petitioner was not similar to the case Rakesh Kumar vs. State of H.P. & Ors. CWP No. 2735 of 2010 decided on 28.07.2010. 7. The office order dated 12.11.2020, passed by respondent No.2 has been assailed in the instant petition. 8. Respondents by way of their reply have supported the impugned office order dated 12.11.2020, by reiterating the stand that the Forest Department was not work charge establishment and hence the petitioner was not entitled to the benefit of judgment passed in the case of Rakesh Kumar (supra). It has also been contended by the respondents that the petitioner had retired in the year 2014 and though he had completed eight years of continuous daily wage service in the year 2011 but his service could not be regularized for want of vacancy. It has also been contended by the respondents that the petitioner had retired in the year 2014 and though he had completed eight years of continuous daily wage service in the year 2011 but his service could not be regularized for want of vacancy. Lastly, an objection as to delay and latches has also been raised by alleging that the petitioner had retired in the year 2014 and had belatedly filed the instant petition in the year 2021. 9. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 10. The respondents have relied upon man days chart with respect to the services rendered by the petitioner on daily wage basis as Annexure R-1 to the reply. The same chart finds place in impugned office order dated 12.11.2020 also. As per the stand of the respondents, the petitioner had completed 240 days service in each calendar years w.e.f. 1995 to 2000 and thereafter from 2003 till the date of his retirement. During the years 2001 and 2002, the petitioner is stated to have rendered services for 218 and 213 days, respectively. 11. It is not in dispute that the regularization policy of the State Government provided for regularization of services of daily wage employees on completion of eight years of continuous daily wage service with 240 days in each calendar year. 12. The petitioner has made specific averment in the petition that non completion of 240 days daily wage service attributed to the petitioner for the year 2001 and 2002 is fallacious for the reasons firstly that during these years, the petitioner had additionally worked at Rampur in “Sanjhi Van Yojna” and secondly the deficiency, if any, was on account of fictional breaks given by the respondents in order to defeat the right of regularization of the petitioner. 13. In respect of the averments that the petitioner had worked in Sanjhi Van Yojna at Rampur during the year 2001 and 2002, petitioner has placed reliance on the evidence recorded by the Industrial Tribunal-cum-Labour Court, Shimla in reference No.4 of 2009 and more particularly on the statement of one Sh. Bali Ram (PW-2)recorded therein. 14. The averments made by the petitioner in the petition in this regard have not been specifically denied or controverted by the respondents. Bali Ram (PW-2)recorded therein. 14. The averments made by the petitioner in the petition in this regard have not been specifically denied or controverted by the respondents. Para 12 of the award dated 03.09.2014 passed by Industrial Tribunal-cum-Labour Court, Shimla in reference No.4 of 2009 substantiates the contention of the petitioner. 15. Similarly, there is no specific denial to the averments that the fictional breaks were granted to the petitioner. The plea raised by the petitioner appears to be genuine and bonafide keeping in view the fact that as per Annexure R-1 i.e. man days chart of petitioner prepared by the respondents, he had continuously worked for much more than 240 days in each calendar year right from 1995 till the date of his retirement except for the years 2001 and 2002 in which also he had statedly worked for 218 and 213 days respectively. In such circumstances, the fictional breaks given to the petitioner during the year 2001 and 2002 are liable to be declared intentional and deliberate and having been given to defeat the rights of petitioner. Hence, for the reasons stated above, the petitioner is deemed to have rendered 240 days of service even during the years 2001 and 2002. 16. The fictional breaks granted by employer in the case of daily waged or temporary employees has been subject of deprecation by the courts. Reference can be made, to judgment passed by Hon’ble supreme Court in Mohammad Abdul Qadir Vs Director General of Police Assam (2009) 6 SCC 611 ; Judgment passed by the Hon’ble Division Bench of this Court in Dharam Chand Vs State of Himachal Pradesh and others CWPOA 6089 of 2020 decided on 28.11.2023 and judgment dated 22.8.2024 passed by another Hon’ble Division Bench of this Court in a bunch of matters with CWPOA 7438 of 2020 titled Gopal Singh Vs State of H.P. as lead case, to note a few. 17. In alternative, there is no denying the fact that the petitioner had completed eight years of continuous service on daily wage basis with 240 days in each calendar year from 2003 onwards till his retirement. That by itself made him eligible for regularization under the regularization policy of State Government. 18. 17. In alternative, there is no denying the fact that the petitioner had completed eight years of continuous service on daily wage basis with 240 days in each calendar year from 2003 onwards till his retirement. That by itself made him eligible for regularization under the regularization policy of State Government. 18. The impugned office order dated 12.11.2020, reveals that the claim of the petitioner has been rejected only on the ground that the Forest Department was not work charge establishment and for such reasons the petitioner could not be granted benefit of judgment in Rakesh Kumar (supra). 19. It will be appropriate to take note of the relevant part of the judgment passed by Division Bench of this Court in Rakesh Kumar (supra) which reads as under: 7. “In the above circumstances, these Writ Petitions are disposed of directing the respondents to consider the case(s) of the petitioners herein for conferment of work-charged status, subject to their eligibility in terms of the policy dated 3.4.2000 and as explained in 6.5.2000 policy, as extracted above. Needful in this regard shall be done within a period of three months from the date of production of the copy of this judgment by the respective petitioners. Needless to say that the question of conferment of work-charged status does not arise in case the establishment ceases to be a work charged establishment and hence, the conferment of the status will not arise after the abolition of the work charged status of the establishment.” 20. The impugned office order dated 12.11.2020 cannot be sustained for the simple reason that the same was result of a total misreading of the judgment in Rakesh Kumar (supra) by respondent No.2. The petitioner was not claiming the benefit of work charge, rather his specific case from the beginning was to claim regularization under the regularization policy of the State Government. Thus, the claim of the petitioner has been rejected on material totally extraneous to the context. 21. Even otherwise the similar plea raised by the Forest Department of the State Government in support of its stand to not grant work charge status to its employees on the ground that the Department was not a work charge establishment, stands rejected by this Court more than once. In CWP 3111 of 2016 titled State of H.P & others Vs. Ashwani Kumar, decided on 10.05.2018, it has been held as under: 6. In CWP 3111 of 2016 titled State of H.P & others Vs. Ashwani Kumar, decided on 10.05.2018, it has been held as under: 6. “Having carefully perused material available on record, especially judgment rendered by this Court in Ravi Kumar v. State of H.P. and Ors, as referred herein above, which has been further upheld by the Hon’ble Apex Court in Special Leave to appeal (C) No. 33570//2010 titled State of HP and Ors. v. Pritam Singh and connected matters, this Court has no hesitation to conclude that there is no error in the finding recorded by the learned Tribunal that work charge establishment is not a pre-requisite for conferment of work charge status. The Division Bench of this Court while rendering its decision in CWP No. 2735 of 2010, titled Rakesh Kumar decided on 28.7.2010, has held that regularization has no concern with the conferment of work charge status after lapse of time, rather Court in aforesaid judgment has categorically observed that while deciding the issue, it is to be borne in mind that the petitioners are only class-IV worker (Beldars)and the schemes announced by the Government, clearly provides that the department concerned should consider the workmen concerned for bringing them on the work charged category and as such, there is an obligation cast upon the department to consider the case of daily waged workman for conferment of daily work charge status, being on a work charged establishment on completion of required number of years in terms of the policy. In the aforesaid judgment, it has been specifically held that benefits which accrued on workers as per policy are required to be conferred by the department.” 22. Similarly, in LPA No.160 of 2021 titled as State of H.P. vs. Reema Devi, decided on 23.05.2022, it has been held as under: 11. Now adverting to the facts of the instant case, the grant of work charge status to late Shri Het Ram has been denied on the ground that Himachal Pradesh Forests Department had no work charge establishment. In Ashwani Kumar's case (supra) also right of the petitioner therein for grant of work charge status was considered when the HPPWD had ceased to be a work charge establishment. 12. In Ashwani Kumar's case (supra) also right of the petitioner therein for grant of work charge status was considered when the HPPWD had ceased to be a work charge establishment. 12. This Court while delivering judgment in Ashwani Kumar's case (supra) had, thus, decided the principle that work charge establishment was not a pre-requisite for conferment of work charge status and thus, would not confine only to the petitioner in the said case. In view of this, the contention raised on behalf of the appellants that the judgment in Ashwani Kumar's case (supra) was a judgement in personam, cannot be sustained.” 23. Noticeably, the respondents have now come up with an additional objection that the petitioner was not entitled to regularization even in the year 2011 for want of vacancy. It is evident from the office order dated 20.11.2020 that the case of the petitioner was not rejected on said ground. That being so, the impugned order dated 12.11.2020, will have to be understood by the reasons mentioned therein and the respondents cannot supplement by drafting fresh reasons in their reply submitted to the instant petition. In Mohinder Singh Gill vs. Chief Election Commission (1978) 1 S.C.C 504 such an exercise has been held to be impermissible for the reason that otherwise an invalid order in the beginning may, by the time it comes to the Court on account of a challenge, get validated by additional grounds later brought out. 24. Additionally, it can also be seen that the for raising such a plea the respondents have not even laid any factual foundation. 25. The objection of the respondents with respect to delay and latches in filing the instant petition also deserves to be ignored for the simple reason that the petitioner had filed CWP No. 7554 of 2014, assailing the award dated 03.09.2014 passed by Labour Court-cum-Industrial Tribunal, Shimla in reference No. 4 of 2009 which was decided on 28.02.2019. It was thereafter that petitioner filed OA No. 2436 of 2019, which was also decided on 03.07.2019. The impugned order was passed on 12.11.2020 and thus the instant petition cannot be said to be suffering from delay and latches. 26. In the light of above discussion, the petition is allowed. The impugned office order dated 12.11.2020 Annexure P-6 is quashed and set-aside. The impugned order was passed on 12.11.2020 and thus the instant petition cannot be said to be suffering from delay and latches. 26. In the light of above discussion, the petition is allowed. The impugned office order dated 12.11.2020 Annexure P-6 is quashed and set-aside. The respondents are directed to consider the case of the petitioner for regularization by treating him to be in continuous daily wage service with completion of 240 days in each calendar year w.e.f. 1995. The required exercise shall be completed by the respondents within a period of eight weeks from the date of passing of this judgment, 27. Petition is accordingly disposed of. Pending miscellaneous application(s), if any, shall also stand disposed of.