Himachal Pradesh High Court
The State Of Himachal Pradesh vs Unknown on 17 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF NOVEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 7053 OF 2021 ALONG WITH CONNECTED
MATTERS.
CIVIL WRIT PETITION NO. 7053 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2.
THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI TULSI RAM
S/O SH. MANI RAM, RESIDENT OF VILLAGE
GADAHACH P.O. RAKOL SUB-TEHSIL NIHRI
DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 1490 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER, SUKET
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FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
.
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI BHAG SINGH
S/O SH. HARU RAM RESIDENT OF VILLAGE &
P.O. RAKOL, TEHSIL NIHRI, DISTRICT
MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 1491 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH ADDL. CHIEF SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI DESH RAJ
S/O SH. MAI DHAR, RESIDENT OF VILLAGE
BANDALI P.O. RAKOL, DISTRICT MANDI, H.P.
..RESPONDENT
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(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 2318 OF 2021
.
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI ANANT RAM
S/O SH. KHUB RAM, RESIDENT OF VILLAGE
KUFTU, P.O. RAKOL, DISTRICT MANDI, H.P.
..RESPONDENT
(MR. RAJIV RAI, ADVOCATE)
CIVIL WRIT PETITION NO. 3310 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
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BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
.
SHRI CHABBI RAM
S/O SH. CHAMARU RAM RESIDENT OF VILLAGE
BASHAL P.O. SUB-TEHSIL NIHRI DISTRICT
MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7037 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI JEET RAM
S/O SH. JIVANAND RESIDENT OF VILLAGE
BAGRI P.O. & SUB-TEHSIL NIHRI,
DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7044 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
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2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
.
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI LACHHI RAM
S/O SH. BUDDHU RESIDENT OF VILLAGE
& P.O. RAKOL DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7045 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI DEEP RAM
S/O SH. MADU RAM RESIDENT OF VILLAGE
BANAS P.O. RAKOL SUB-TEHSIL NIHRI
DISTRICT MANDI, H.P.
..RESPONDENT
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(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7048 OF 2021
.
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI DHARAM PAL
S/O SH. NARIAN RESIDENT OF VILLAGE
GADAHACH P.O. RAKOL DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7054 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
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7
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
.
SHRI KARAM SINGH
S/O SH. TARA CHAND RESIDENT OF VILLAGE
& P.O. RAKOL SUB-TEHSIL NIHRI
DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7055 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI DUNI CHAND
S/O SH. CHAMARU RAM RESIDENT OF VILLAGE
LANGOT P.O & SUB-TEHSIL NIHRI
DISTRICT MANDI, H.P.
..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
CIVIL WRIT PETITION NO. 7071 OF 2021
Between:-
1. THE STATE OF HIMACHAL PRADESH
THROUGH PR. SECRETARY (FORESTS)
TO THE GOVT. OF HIMACHAL PRADESH.
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2. THE DIVISIONAL FOREST OFFICER SUKET
FOREST DIVISION, SUNDERNAGAR,
DISTRICT MANDI, H.P.
....PETITIONERS
.
(BY MR. ASHOK SHARMA, ADVOCATE
GENERAL WITH MR. R.S. DOGRA,
SR. ADDL. A.G WITH MR. SHIV PAL
MANHANS, MR. HEMANSHU MISRA,
MR. VINOD THAKUR, ADDITIONAL
ADVOCATE GENERALS AND MR.
BHUPINDER THAKUR, DEPUTY
ADVOCATE GENERAL)
AND
SHRI PREM LAL
S/O SH. DANU RAM RESIDENT OF VILLAGE BANAS
P.O. RAKOL SUB-TEHSIL NIHRI
DISTRICT MANDI, H.P.
r ..RESPONDENT
(MR. VINAY MEHTA AND MR. DEVI SINGH
VERMA, ADVOCATES)
________________________________________________________________________
This petition coming on for orders this day, Hon'ble Mr. Justice
Tarlok Singh Chauhan, passed the following:
ORDER
Aggrieved by the order dated 20.12.2017 passed by the Labour
Court-cum-Industrial Tribunal, Kangra at Dharamshala, the State has
come up before this Court with the instant petitions. The challenge to
the award passed by the Labour Court is mainly on the ground that the
workman was engaged on bill basis and there is no policy to regularize
the bill based engagement workers.
2. It is not in dispute that many other similarly situated workmen
like the petitioners had also approached the Labour Court-cum-
Industrial Tribunal by filing references and the same were allowed by
the learned Tribunal in the following manner:-
"19. As sequel to my findings on foregoing issues, it is held
that the petitioner was in continuous uninterrupted service
with the respondent from the date of his initial engagement
.
and that the breaks given by the respondent being fictional
in nature shall have no effect on the seniority and continuity
of service of the petitioner and his seniority shall be
reckoned from his initial date of engagement. Accordingly,
claim of petition is hereby allowed in part and reference is
accordingly answered in favour of petitioner. The petitioner
shall thus be deemed to be in continuous service of
respondent with all consequential benefits except back
wages. He shall, however, be considered for regularization
by respondent at the time when his juniors have been
regularized as per policy governing daily wagers as framed
by State Govt. and operative from time to time. The parties,
however, shall bear their own costs."
3. The petitioners-employer has assailed the order mainly on the
ground that the references had been filed belatedly. The Labour
Court-cum-Industrial Tribunal considered the matters in detail, as is
evident from para 14 and 15 thereof, which reads as under:-
"14. In so far as the plea of abandonment is concerned, ld. Dy.
D.A for respondent has contended with vehemence that
petitioner had left the job of his own sweet will. It is settled
principle of law that plea of 'abandonment' has to be proved
like any other fact by respondent/department. Simply because
workman fails to report for duty cannot be construed to mean
that workman has abandoned the job. There is no iota of
evidence on record establishing that any notice was issued or
served to petitioner by respondent when he had absented from
duty calling upon him to join duty or explain the cause for his
unauthorized absence as absence from duty is serious
misconduct requiring initiation of departmental proceedings
before taking any action against workman. Again there is no
iota of evidence on record showing that the respondent had
initiated any action due to absence of petitioner from duty. It is
evident from record that even no explanation of petitioner was
called, or show cause notice was issued by respondent qua
.
absence of petitioner from duty from time to time when he
absented as per the mandays chart referred to above. Thus,
the plea of abandonment or absence from duty put forth by the
respondent also merits rejection being devoid of merits and at
the same time the respondent could not plead ignorance qua
proceedings which were required to be taken when intermittent
breaks were being given to the petitioner and as such, plea of
fictional breaks having been given as stated above is liable to
be accepted.
15. Another aspect highlighted by the petitioner remains when
in cross-examination RW1 Shri Suneet Bhardwaj, Divisional
Forest Officer, Suket Division has admitted one Yashwant Singh
was stated to have been regularized by the department and
Ex.PB was the order of regularization. The petitioner has also
led reliable evidence on record showing that during conciliation
proceedings said Yashwant Singh was assured to be regularized
who was junior to petitioner. It has also come in evidence that
petitioner during conciliation proceedings before Labour
Inspector, Sunder Nagar was assured of being regularized as is
evident of statement of Chet Ram Block Forest Officer. The
statement of said Chet Ram has been obtained under RTI Act
Ext.PW2/A-3 in which said Chet Ram had made statement
before Conciliation Officer that petitioner would be regularized
and his name shall be incorporated in the seniority list. The
petitioner has claimed that despite assurance of responsible
officer of forest department as stated above, respondent had
not been regularized instead a failure report was submitted by
Conciliation Officer before the appropriate government whereas
said Yashwant Singh who too was similarly situated had been
given assurance before Conciliation Officer as has come in the
evidence on record for which officer order Ext.PB was issued.
Said Yashwant Singh is shown to have been engaged on 1 st
January, 2000 and had been given fictional breaks but was
regularly working with the respondent since 2006. Ex.PW2/A-9
shows that Yashwant Singh initially engaged in April, 2009 and
.
worked till February 2013 and thereafter he had left the job but
while issuing regularization order as shown in Ex. PB dated
29.6.2017 said Yashwant Singh has been regularized. Although,
in his claim petition, the petitioner has neither mentioned the
name of Baldev Singh nor Yashwant Singh but certainly this
evidence shows discriminatory attitude of the respondent in
regularizing junior and ignoring the name of petitioner who has
certainly senior to both the above named. As such, the
principle of 'Last come First go' envisaged under Section 25-G
of the Act is held to have not been followed by respondent while
giving intermittent breaks as has come in evidence."
4. As observed above, apart from the respondents herein, many
other similarly situated workmen had also approached the Labour
Court-cum-Industrial Tribunal by filing references and the learned
Tribunal by recording the reasons, allowed the petitions. One such
order is assailed before this Court by the petitioners-State in CWP No.
3388 of 2021 in case titled as The State of Himachal Pradesh &
another vs. Manohar Lal, decided on 21st June, 2021, wherein the
Principal Division Bench of this Court had upheld the award by
recording reasons, which reads as under:-
"7. Another reason for the award is on the principle of
equality and on the grounds of parity, which was given to
Shri Yashwant Sing, one of the employees, who was similarly
placed.
8. The learned Labour Court gave a limited relief of
continuity in service from the date of initial engagement as
well as seniority, except back wages, with a clarification that
he would be considered for regularization at the time when
his juniors were regularized."
9. Given the delay and also the limited relief granted by the
.
learned Labour Court coupled with the fact that we do not
find any illegality in the impugned award, we find no merit in
the present writ petition. Which is dismissed accordingly."
5. Admittedly, the judgment passed by this Court in CWP No. 3388
of 2021 has not been challenged by the State. Even otherwise, we are
not persuaded to take a different view of the matter.
6. Accordingly, for the aforesaid reasons, the judgment passed in
CWP No. 3388 of 2021 shall also mutatis mutandis apply to these
cases. All the petitions are dismissed and the award passed by
learned Labour Court-cum-Industrial Tribunal, Kangra at Dharamshala
is upheld. Pending application(s), if any, also stand disposed of.
(Tarlok Singh Chauhan)
Judge
November 17, 2021 ( Satyen Vaidya )
(naveen) Judge
