Himachal Pradesh High Court
Ran Singh vs The Himachal Pradesh on 4 October, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 4th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6968 OF 2019
Between:
RAN SINGH,
S/O SH. PREM SINGH,
R/O V.P.O. HARABAG,
TEHSIL JOGINDERNAGAR,
DISTRICT MANDI,
HIMACHAL PRADESH.
....PETITIONER
(BY MR. VINOD CHAUHAN,
ADVOCATE)
AND
1. THE HIMACHAL PRADESH
STATE ELECTRICITY BOARD
LTD. THROUGH ITS EXECUTIVE
DIRECTOR PERSONNEL,
VIDYUT BHAWAN,
SHIMLA-171004.
2. SUPERINTENDING ENGINEER
(OP), CIRCLE, HPSEBL, KANGRA,
DISTRICT KANGRA, H.P.
3. CHIEF ENGINEER (OPERATION),
CENTRAL ZONE, HPSEBL,
MANDI,
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2
DISTRICT MANDI, HIMACHAL
.
PRADESH.
4. SR. EXECUTIVE ENGINEER,
ELECTRICAL DIVISION,
HPSEBL BAIJNATH,
DISTRICT KANGRA, H.P.
....RESPONDENTS
(BY MR. T.S. CHAUHAN,
ADVOCATE)
Whether approved for reporting?. Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
By way of instant petition, which was earlier filed before the
erstwhile HP State Administrative Tribunal and same after its abolishment,
has been transferred to this Court for adjudication, petitioner has prayed
for following main reliefs:
"(i) That the respondents Board may kindly be directed to
give the work charge status/regularization to the applicant
with all consequential benefits as Beldar with effect from
01.01.1997 with interest @ 9% per annum, when he
completed his 8 years services with 240 days as per the
policy of the State Government and as per ratio laid down by
the Hon'ble High Court on 28-07-2010 in Rakesh Kumar
case.
(ii). That the respondents may very kindly be directed to
.
grant the pension to the applicant after considering his case
for grant of work charge status with effect from 01.01.1997,
including seniority, pay fixation etc.
2. Precisely, facts of the case, as emerge from the record are that
petitioner was initially engaged as Beldar on daily wage basis on 25.9.1989
with the respondent-board, Electrical Division, Jogindernagar, District
Kangra, H.P., where he remained posted upto 31.1.2004.
vide order dated 16.4.2012, respondent-board revised the services of the
petitioner upto 16.4.2012 vide letter dated 29.5.2012. Vide memorandum
Subsequently,
No. 235063/MS/2012, (Annexure A-3), respondent-board offered the post
of T/mate on work charge basis (personal post) to the petitioner in the pay
scale of Rs. 5100-10680-1700GP from the date of his joining. Besides
above, respondent-board also issued continuity service certificate in favour
of the petitioner as is evident from Annexure A-4. Since despite petitioner's
having put in more than 24 years in service, his services were not
regularized, he has approached this court in the instant proceedings.
3. It has been alleged by the petitioner that though his juniors
have been regularized by the respondent-department, his services are not
being regularized. It has been further averred in the petition that as per
policy of the respondent-department, daily wagers are entitled to get work
charge status after their having completed eight years service, but in the
.
case of the petitioner, who has completed 240 days in each calendar year
and has worked continuously for more than eight years, has not been
granted the benefit as per policy of the regularization framed by the
Government from time to time.
4. Mr. Vinod Chauhan, learned counsel for the petitioner, while
inviting attention of this court to the judgment passed by this Court as well
as Division Bench of this Court in CWP No. 2735 of 2010 (a/w connected
matters) dated 28.7.2010, titled Rakesh Kumar v. State of HP and Ors.,
vehemently argued that after completion of eight years regular service, as
daily wagers, respondent-department ought to have regularized the services
of the petitioner, but in the case at hand, petitioner has not been granted
the aforesaid benefit of regularization despite his having rendered more
than 25 years in service, firstly, as daily wager and thereafter, as work
charge employee.
5. Respondents in their reply have not denied that the petitioner
was initially engaged on daily wage basis in the year, 1989 and thereafter,
he was conferred work charge status in the year, 2012, but benefit of
regularization, as has been claimed in the instant petition, has been
sought to be denied on the ground that at the time of the passing of order
dated 16.4.2012 (Annexure A-1), whereby the petitioner was conferred work
.
charge status as T/mate, he had executed two affidavits, stating therein
that he will withdraw the court cases, if any, and will not claim any past
benefit/claim.
6. Careful perusal of the aforesaid affidavits i.e. Annexure R1 and
R-2 though suggests that in the year, 2012, at the time of conferment of
work charge status as T/mate, petitioner had executed affidavits stating
therein that he shall have no claim of arrears on the basis of equal pay for
alleged equal work for the past service rendered as daily paid personnel
and he shall forego arrears, if any, but same cannot be made basis by the
department to refuse the relief of regularization claimed by the petitioner in
light of the regularization policy, framed by the government from time to
time. Since there is no denial on the part of the respondent that as per
regularization policy in vogue in the department, many similar situate
persons were granted work charge status and subsequently, their services
were regularized, this Court is compelled to draw an inference that
affidavits executed by the petitioner (Annexure R-1 and R-2) annexed with
the petition, at the time of his being conferred work charge status, is a
result of unfair labour practices adopted by the board. Firstly, department
made the petitioner to wait for grant of work charge status for more than
23 years, whereas as per policy, he ought to have been conferred work
.
charge status on his having completed eight years daily wage service with
240 days in each calendar years, but thereafter, department taking undue
advantage of the plight of the petitioner, who had no option, made him to
execute the affidavits as have taken note herein above, while granting him
work charge status that too after his having rendered more than 23 years
of service, which action on the part of the respondents cannot be said to be
justifiable, rather compels this Court to draw inference that department
has indulged in unfair labour practice.
7. Otherwise also, contents of the affidavits, as have been taken
note herein above, nowhere suggest that the petitioner undertook before
the department that he would not claim regularization, which is/was to be
otherwise granted in terms of regularization policy framed by the
Government of Himachal Pradesh as well as respondent board from time to
time. It is not understood, that how after completion of eight years regular
service, petitioner could be denied the benefit of regularization, on the
pretext that he had executed affidavits to the effect that he will not claim
any benefit of the past service.
8. Mr. T.S. Chauhan, learned counsel representing the
respondents-Board, argued that policy of regularization framed by the
government is not applicable to the respondent-board, but same time, he
.
was unable to dispute that petitioner is not entitled for regularization after
his having completed eight years because as per own case of the
respondent-board though petitioner had become eligible for regularization
after his completed eight years service, but since he had undertaken by
way of an affidavits that he shall not claim any benefit of past service, he is
esttoped from claiming the benefit of regularization. Though this court is of
the view that execution of the affidavit, if any, by the petitioner at the time
of the grant of work charge status is of no relevance as far as prayer having
been made by the petitioner for regularization after his having completed
eight years service is concerned, but even otherwise, this Court cannot
loose sight of the fact that affidavits, which are being relied upon heavily by
the respondent department are the outcome of the coercion and undue
influence exercised by the department, upon the petitioner at the time of
grant of work charge status. Since petitioner had already rendered more
than 23 years of service and he was not granted work charge status, he
had no option, but to succumb to the demand of the department, whereby
they without there being any authority made the petitioner to execute
affidavits stating therein that he shall not claim any benefit of past service.
Affidavit executed by the petitioner is the result of adverse circumstances,
under which, the petitioner was made to execute an affidavit. Had he not
.
executed the affidavit in the year, 2012, probably, department would not
have granted him work charge status, to which, otherwise he had become
eligible in the year, 2007. At the time of the execution of the affidavits,
which are being relied upon heavily by the department, petitioner had no
choice, but to execute the affidavit that too on the dotted line on a
prescribed or standard form, hence, same cannot be allowed to be used by
the department to deny the legitimate claim of the petitioner i.e.
regularization, to which he had become eligible after a specific period as set
out in the policy of the regularization framed by the State of Himachal
Pradesh as well as respondent-board. Hon'ble Apex Court in case titled
Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo
Nath Ganguly and Anr and Central Inland Water Transport
Corporation Ltd. and Anr. v. Tarun Kanti Sengupta and Anr, AIR
1986 SC 1571, has held that courts will not enforce and will, when called
upon to do so, strike down an unfair and unreasonable contract, or an
unfair and unreasonable clause in a contract, entered into between parties,
who are not equal in bargaining power. Relevant para of the aforesaid
judgment is reproduced herein below:
"90. Should then our courts not advance with the times?
Should they still continue to cling to outmoded concepts and
outworn ideologies? Should we not adjust our thinking caps to
match the fashion of the day? Should all jurisprudential
.
development pass us by, leaving us floundering in the sloughs
of nineteenth-century theories? Should the strong be permitted
to push the weak to the wall? Should they be allowed to ride
roughshod over the weak? Should the courts sit back and
watch supinely while the strong trample under foot the rights
of the weak? We have a Constitution for our country. Our
judges are bound by their oath to "uphold the Constitution and
the laws". The Constitution was enacted to secure to all the
citizens of this country social and economic justice. Article
14 of the Constitution guarantees to all persons equality before
the law and the equal protection of the laws. The principle
deducible from the above discussions on this part of the case is
in consonance with right and reason, intended to secure social
and economic justice and conforms to the mandate of the great
equality clause in Article 14. This principle is that the courts
will not enforce and will, when called upon to do so, strike
down an unfair and unreasonable contract, or an unfair and
unreasonable clause in a contract, entered into between parties
who are not equal in bargaining power. It is difficult to give an
exhaustive list of all bargains of this type. No court can
visualize the different situations which can arise in the affairs
of men. One can only attempt to give some illustrations. For
instance, the above principle will apply where the inequality of
bargaining power is the result of the great disparity in the
economic strength of the contracting parties. It will apply
where the inequality is the result of circumstances, whether of
the creation of the parties or not. It will apply to situations in
which the weaker party is in a position in which he can obtain
goods or services or means of livelihood only upon the terms
imposed by the stronger party or go without them. It will also
apply where a man has no choice, or rather no meaningful
choice, but to give his assent to a contract or to sign on the
dotted line in a prescribed or standard form or to accept a set
of rules as part of the contract, however unfair, unreasonable
and unconscionable a clause in that contract or form or rules
may be. This principle, however, will not apply where the
bargaining power of the contracting parties is equal or almost
equal. This principle may not apply where both parties are
businessmen and the contract is a commercial transaction. In
today's complex world of giant corporations with their vast
infra-structural organizations and with the State through its
instrumentalities and agencies entering into almost every
branch of industry and commerce, there can be myriad
situations which result in unfair and unreasonable bargains
between parties possessing wholly disproportionate and
unequal bargaining power. These cases can neither be
enumerated nor fully illustrated. The court must judge each
case on its own facts and circumstances."
9. Consequently, in view of the detailed discussion made herein
.
above, present petition is allowed and respondent Board is directed to
regularize the services of the petitioner from the date he had become
eligible for regularization in terms of regularization policy framed by the
Government of Himachal Pradesh as well as respondent-board. Since in
the case at hand, order granting work charge status was passed in the
year, 2012 (Annexure A-1), but yet petitioner waited for four years to file
present petition, he is held entitled to consequential benefits only for the
period of three years, prior to filing of the writ petition. In the aforesaid
terms, present petition is disposed of alongwith pending applications, if
any.
4th October, 2021 (Sandeep Sharma),
(manjit) Judge
