Sukhpal vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—The petitioner, who was working as Class-IV employee with the respondent-Forest Department, State of Haryana on a daily wage basis, has filed the instant writ petition praying for the issuance of a writ of mandamus for directing the respondents to regularise his services w.e.f. 1.10.2003 with all consequential benefits. Facts, in brief, are that the petitioner initially joined the respondent-Department as a Class-IV employee on daily wage basis in January 1989. His services were terminated on 1.9.2000. The petitioner raised an industrial dispute and the matter was referred to the Labour Court. Vide award dated 16.1.2006, the reference was answered by the Labour Court in favour of the petitioner and the impugned order of termination of the services of the petitioner was held to be bad in law and he was directed to be re-instated w.e.f. 1.9.2000 along with all consequential service benefits including continuity in service. The relevant extract of the award dated 16.1.2006 passed by the Presiding Officer, Labour Court, Ambala pertaining to the relief granted to the petitioner is extracted hereunder for facility of ready reference:

Relief.

Keeping in view my findings in the aforesaid issues, the claim petition of the petitioner succeeds and is hereby accepted with costs. Accordingly, the impugned order of the termination of the services of the petitioner is hereby set aside being wrong, illegal, null & void etc. and the respondent is directed to reinstate the petitioner-workman w.e.f. 1.9.2000 along with all the consequential service benefits including continuity of service and full back wages. The reference stands answered accordingly.

Sd/- 16/1/06 (Sanjay Jindal) Addl. Distt. & Sessions Judge, Presiding Officer, Labour Court, Ambala.

Such award dated 16.1.2006 was challenged by the respondents inn this Court in terms of filing Civil Writ Petition No. 9158 of 2006 and a Division Bench, vide order dated 31.5.2006, Annexure P1, dismissed the writ petition thereby upholding the award. Even Special Leave to Appeal (Civil) No. 13052 of 2006 preferred by the respondent-Department was dismissed by the Hon''ble Apex Court on 18.8.2006, Annexure P2. Accordingly, the petitioner was re-instated in service and was released the arrears towards back wages from the date of termination till the date of re-instatement.

Learned counsel appearing for the petitioner would refer to notification dated 1.10.2003 issued by the State Government on the subject of regularization of services of daily wage employees and would contend that all such daily wage employees who were working as on 30.9.2003 and had completed three years service were vested with the right to be regularized. Learned counsel would argue that since in terms of the award dated 16.1.2006, the petitioner had been directed to be reinstated with continuity in service, he was clearly entitled to the benefit of regularization of his services w.e.f. 1.10.2003 in the light of notification at Annexure P3. It has been argued that the action of the respondent-Department in denying such benefit merely on account of the fact that the petitioner was not in service on 30.9.2003 is clearly arbitrary and illegal inasmuch as his termination w.e.f. 1.9.2000 had been held to be illegal and he was held to be re-instated in service with all consequential benefits including continuity in service. That apart, even the plea of discrimination has been raised in terms of citing the instance of one Shri Pyare Lal son of Shri Gauri Mal who had been appointed as a Class IV in the respondent-Department after the petitioner and yet had been granted the benefit of regularization of service w.e.f. 1.10.2003 under the State Policy of regularization vide order dated 25.1.2006, Annexure P5.

Per contra, learned State counsel would refer to the written statement filed on behalf of respondents No. 1 to 3 to contend that in the light of the judgment of Hon''ble Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, , the policy of regularization of service which was issued in the year 2003 and upon which the petitioner has placed reliance, has since been withdrawn. Learned State counsel would further refer to the judgment in Uma Devi''s case (supra) to submit that merely because an employee had continued on a contractual basis under the cover of an order of the Court, the same would be described as a ''litigious'' employment and such employee would not be entitled to be absorbed or made permanent in service. Accordingly, learned counsel for the State would urge that the prayer raised in the present writ petition merits rejection.

I have heard learned counsel for the parties at length and have perused the pleadings on record.

It is not a matter of dispute that the termination of the services of the petitioner w.e.f. 1.9.2000 had been held to be bad in law in terms of the Labour Court award dated 16.1.2006. Still further, directions had been issued to re-instate the petitioner w.e.f. 1.9.2000 with all consequential benefits including continuity in service. Such award passed in favour of the petitioner has been upheld up to the Hon''ble Apex Court. As such, by the deeming fiction of law, the petitioner would have to be construed to be in service as on 30.9.2003 i.e. the relevant date as per regularization policy dated 1.10.2003, Annexure P3. It is well settled that once directions for re-instatement of an employee with continuity in service have been issued, he would be deemed to be in service for all intents and purposes continuously and all the benefits accruing on the basis of the deemed re-instatement would flow to such employee in law. The plea raised on behalf of the State that his claim for regularization cannot be accepted on the ground that the regularization policy stands withdrawn and that the petitioner was not in service on the crucial date i.e. 30.9.2003, cannot be accepted.

Even the reliance placed by the State on Uma Devi''s case (supra) is wholly mis-conceived. The observations made by the Hon''ble Supreme Court in a subsequent judgment i.e. State of Karnataka and Others Vs. M.L. Kesari and Others, wherein the judgment in Uma Devi''s case (supra) was considered, would be relevant insofar as the claim raised by the petitioner is concerned, and in para 8 thereof, it had been held as follows:

The object behind the said direction in para 53 of Uma Devi is two-fold. First is to ensure that those, who have put in more than ten years of continuous service without the protection of any interim orders of court or Tribunals, before the date of decision in Uma Devi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily wage/ad hoc/casual for long periods and then periodically regularize them on ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Uma Devi) without the protection of any interim order of any court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Uma Devi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Uma Devi as a one-time measure.

The specific pleadings raised by the petitioner with regard to a junior, namely, Pyare Lal son of Gauri Mal, who was appointed on daily wage basis later in point of time and having been regularized w.e.f. 1.10.2003 under the 2003 Policy, vide order dated 25.1.2006, Annexure P5, have gone unrebutted at the hands of the State. The petitioner was clearly vested with a better and prior right to consideration for regularization as compared to another employee who had, in fact, been appointed later than the petitioner on daily wage basis. In the backdrop of such unrebutted fact, the action of the respondent-Department in denying to the petitioner his claim for regularization in service is clearly in violation of Articles 14 and 16 of the Constitution of India.

In view of the reasons recorded above, the present writ petition is allowed. A direction is issued to regularize the services of the petitioner w.e.f. 1.10.2003 i.e. the date with effect from a person junior to him has been granted the same benefit. The requisite order be passed within a period of two months from the date of receipt of a certified copy of this order. The petitioner shall also be entitled to all consequential benefits except the payment of arrears. Petition allowed in the aforesaid terms.