Sain Ram vs State Of H.P. And Others

Ajay Mohan Goel, J

By way of this writ petition, the petitioner has prayed for the following substantive reliefs:­

"(i) That the impugned office order dated 24.1.2027 ( Annexure A­5 ) may kindly be quashed and set aside.

(ii) That the respondents may kindly be directed to extend the benefit of regularization/work charged status to the applicant as Beldar w.e.f. November 2002 with all consequential benefits such as; arrears of pay for the period w.e.f. November, 2002 till 22.02.2007, seniority, pay fixation and other allied service benefits, since the applicant was engaged in the month of November 1992 and he was entitled to get work regularization/work charged status in November, 2002 as per ratio laid down in Mool Raj Upadhaya Vs. State of H.P., but he was given work charged status w.e.f. 2007 i.e. after the delay of 5 years.

(iii ) That the respondents may kindly be directed to declare the applicant entitled to get pension after his retirement on attaining the age of superannuation as per the policy of State of Himachal Pradesh."

The issue involved in this petition is in a narrow compass. The petitioner was initially engaged as a Beldar by the respondent­Department in the month of November, 1992 upto December, 1995. Thereafter his services were terminated as per the petitioner, whereas, as per the respondents, the petitioner voluntarily left the job. The petitioner raised an industrial dispute with regard to termination of his services in the year 1995 which led to a Reference being made by the appropriate Government under Section 10 of the Industrial Disputes Act to the Court of learned Presiding Judge, Labour Court, which Reference stood decided by the learned Labour Court vide award dated 20.11.2001, in the following terms:­

"6. Keeping in view the aforesaid finding and discussion, I hold that the termination of the petitioner is in violation of the provisions of Section 25. F of the Industrial Disputes Act, 1947, I, therefore, order his re­instatement with seniority and other consequential benefits except the back wages. The reference is answered in affirmative. Let a copy of this award be sent to appropriate government for its publication."

A copy of the award is appended with the petition as Annexure A­1. Thereafter, the services of the petitioner were regularized vide Annexure A­2, dated 22.2.2007. It appears that as the petitioner was not satisfied with the date of his regularization, he approached erstwhile learned H.P. Administrative Tribunal by way of O.A. No. 5648 of 2016, which stood disposed of by the learned Tribunal vide order dated 9.11.2016 by directing the respondents/Competent Authority to consider the case of the petitioner as per law declared by Hon'ble Supreme Court of India in Mool Raj Upadhaya Vs. State of H.P., 1994 SCC, Supl. (2) 316. This was followed by a representation being made by the petitioner to the competent authority dated 7.12.2016, pursuant of which office order, dated 24.1.2017 (Annexure A­5) stood passed by the competent authority ordering the regularization of the services of the petitioner w.e.f. 1.1.2004.

Still feeling aggrieved, the petitioner again approached the learned Tribunal by way of present proceedings, which now stand transferred to this Court, wherein his prayer is that he may be given the benefit of regularization/ work charge status as a Beldar w.e.f. November, 2002 as respondents/authorities have erred in not appreciating that the applicant was deemed to be engaged from the month of November 1992 as a Beldar for the purpose of regularization and not from the year 1996 onwards.

I have heard learned counsel for the parties and also gone through the pleadings as well as documents appended with the petition.

In my considered view, the petitioner is not entitled for regularization by treating the date of his initial engagement to be the year 1992. This I say so for the reason that there is no material placed on record by the petitioner to demonstrate that either in the year 1992 or 1993, he had completed 240 days in each of the said calender years. However, as far as calender years 1994 and 1995 are concerned, it stands mentioned in para­4 of the award that the petitioner had worked for 288 days from December, 1994 to December, 1995. These findings have attained finality.

Now, keeping in view the fact that the month of December comprises of 31 days, even if the period for which the petitioner worked in the month of December, 1994, is to be excluded, it can be safely adduced that even in the year 1995, the petitioner had put in more than 240 days service. Therefore, at least, the petitioner is entitled for this period to be counted for the purpose of considering his eligibility for being regularized.

Accordingly, this writ petition is disposed of with the direction that the order of regularization of the petitioner shall be reviewed by the authority concerned and services of the petitioner shall be regularized in terms of the conditions of the policy in vogue by treating the petitioner as having been completed more than 240 days service even in the year 1995. Needful shall positively be done within four weeks from today. The petitioner shall also be entitled for all consequential benefits including seniority etc.

The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.