State Of H. P. & Ors vs Sanjv Vajir

Tarlok Singh Chauhan, J

By medium of this petition, the State has assailed the award dated 29.08.2019, passed by the learned Labour

Court-cum-Industrial Tribunal, Kangra at Dharamshala.

The minimal facts as necessary for the adjudication of this case are that the respondent was initially engaged as Beldar on daily wage basis in the year, 1999. The respondent thereafter worked intermittently till the year, 2011, when he was ordered to be transferred from the office of Executive Engineer, Shimla Division No. II to the office of Executive Engineer, Baijnath Division. The respondent thereafter worked continuously by putting more than 240 days in a calendar year and based upon the instructions of the government, his services came to be regularized on 05.03.2018.

Earlier to this, the respondent in the year, 2013 filed a CWP No. 7284 of 2013, wherein he prayed that he may be regularized/granted work charge status after completion of eight years of service. The petition was disposed of with a direction to the respondents (petitioners herein) to consider the case of the petitioner (respondent herein) in light of the decision rendered by the Court in CWP No. 2735 of 2010, titled as Rakesh Kumar vs. State of H.P. and Ors. alongwith connected matters, decided on 28.07.2010.

The case of the respondent was considered and rejected, constraining the respondent to file a Reference Petition No. 439 of 2015 before the learned Labour Court-cum-Industrial Tribunal, which came to be allowed vide award dated 29.08.2019 in the following terms:-

As a sequel to my findings on the issues above, the instant claim petition succeeds in part and the same is partly allowed It is held that artificial/fictional breaks were provided to the petitioner by the respondent from August, 1999 till 31.8.2007 wrongly and illegally. This period of fictional breaks is ordered to be counted for the purpose of continuous service, except back wages. It further goes without saying hat the petitioner shall be entitled to regularization from his initial date/month of engagement though subject to the policy of State Government from time to time. Parties to bear their own costs. The reference is answered in the aforesaid terms. A copy of tis Award be sent to the appropriate Government for publication in the official gazette.

We have heard learned Advocate General for the State and Mr. Adarsh K. Vashishta, learned Advocate, for the respondent.

In order to appreciate the controversy in question, it would be necessary to first refer to the Man-days Chart and the same reads as under:-

Seniority list of Shri Sanjeev Wazir s/o Shri Shiv Ram, who have completed 5 years on 31.05.2017 with minimum 240 days in each calendar year.

Year

Days

1999

59

2000

152

2001

177

2002

168

2003

163

2004

180

2005

164

2006

95

2007

221

2008

364

2009

350

2010

302

2011

156 ½

2012

366

2013

365

2014

363

2015

363

2016

362

2017

151

It would be noticed that right from the years 1999 to 2007, the respondent did work but that was only intermittent and it was after the year 2008 upto 2010 that the respondent worked for more than 240 days but abruptly in the year, 2011, the respondent only put in 156 ½ days in service. There is nothing on record to indicate that the respondent during the relevant time had questioned the action of the petitioners on the ground that he was being given fictional/artificial breaks so as to deny the claim of the respondent for regularization, yet, the Presiding Officer has concluded that the respondent had deliberately been granted fictional/artificial breaks and the only reason for arriving at such conclusion is contained in para-26 of the award, which reads thus:-

“26. The seniority list, copy of which has been exhibited and proved on record by the petitioner as Ex.PW2/A through the statement of PW2 Shri Mukesh Kumar posted as Junior Engineer in HPPWD Division Baijnath, reveals that workmen Shri Ghanshyam and Shri Narayan Dass both were engaged in the year 2001 and since then they were being offered muster rolls for a full month uptil the year 2007. Indisputably, both the above named workmen are shown to be employed in HPPWD Division Baijnath. There is no explanation on the part of the respondent as to why the petitioner, who admittedly was senior to the aforementioned workmen, was not granted the muster rolls for the entire month. Be it recorded at the risk of repetition that a plea was taken by the respondent that the petitioner was being engaged as per the availability of work and funds. If that be so, then why the respondent had been providing work for the entire month uptil the year 2007 to the aforesaid workmen, who both were also working in the same Division? The reasons to that effect being obscure go to show that the story put forth by the respondent that the work was being provided to the petitioner as per the availability of work and funds is incorrect. It, thus, only goes to show that the respondent had either been resorting to favourtism or had been acting in a partisan manner to one set of workmen or was resorting to such process with an oblique motive of depriving the petitioner of the status and privileges of permanent workman, entitling him to regularization as per the policy of the State Government from time to time. It appears to be an act of gross discrimination which is ex-facie borne out from the record.”

As observed above, the onus to prove the fact of fictional/artificial breaks was solely upon the respondent and merely because some other workmen who may have been engaged after the engagement of the respondent were offered muster rolls for the full month after the year, 2007 could not lead to any inference that the respondent had either been discriminated or that fictional/artificial breaks had been granted to the respondent so as to defeat his claim for regularization. The plea is otherwise negated from the man-days chart (supra), which goes to indicate that the respondent had been permitted to work for 364 days in the year, 2008, 350 days in the year, 2009, 302 days in 2010, 366 days in 2012, 365 days in 2013, 363 days in 2014 and 2015 and 362 days in 2016, meaning thereby, that the respondent had been engaged throughout the year.

The conclusion or rather inference drawn by the learned Presiding Judge is based only on hypothesis without there being any proof whatsoever either in the pleadings or in the evidence so led.

Obviously, in such circumstances, the petition is allowed and the impugned award dated 29.08.2019, passed by the learned Labour Court-cum-Industrial Tribunal is not sustainable in the eyes of law and the same is accordingly set aside, leaving the parties to bear their own costs.

Pending miscellaneous application(s), if any, shall also stand disposed of.