Himachal Pradesh High Court
Between vs Shyam Lal Was Allowed. Break In His ... on 3 March, 2022
Bench: Mohammad Rafiq, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 3rd DAY OF MARCH 2022
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 2990 of 2016
1.
Between:-
THE STATE OF HP
r to
THROUGH THE SECRETARY (PWD)
TO THE GOVT. OF HP SHIMLA, HP.
2. ENGINEER-IN-CHIEF,
HPPWD, NIRMAN BHAWAN,
NIGAM VIHAR SHIMLA-2.
3. SUPERINTENDING ENGINEER,
HPPWD CIRCLE, KASUMPTI SHIMLA-9, (HP)
4. EXECUTIVE ENGINEER,
ELECTRICAL DIVISION,
HPPWD, MANDI (HP).
.....PETITIONERS
(BY SMT. RITTA GOSWAMI, ADDITIONAL
ADVOCATE GENERAL)
AND
SH. CHAMAN LAL,
S/O LATE SH. GURDAS RAM
R/O VILLAGE, P.O. BHANGROTU
TEHSIL BALH, DISTT. MANDI, H.P.
.....RESPONDENT
::: Downloaded on - 03/03/2022 20:11:56 :::CIS
2
(BY SH. RAKESH KUMAR DOGRA, ADVOCATE)
Reserved on: 23.02.2022
Pronounced on: 03.02.2022
.
WHETHER REPORTABLE OR NOT: Yes
____________________________________________________
This petition coming on for hearing this day, Hon'ble
Ms. Justice Jyotsna Rewal Dua, passed the following:
ORDER
State has filed instant writ petition against an
order passed by the erstwhile Himachal Pradesh
Administrative Tribunal on 17.12.2015 in TA No.4598/2015.
Under this order shortfall in completion of 240 days in service
of respondent in the years 1998 to 2001 was condoned and
directions were issued to regularize his services as T-Mate
from the date his juniors were regularized with all
consequential benefits.
2. Facts
Respondent was engaged as daily waged
Electrical Beldar (T-Mate) in Himachal Pradesh Public Works
Department Electrical Sub Division Kullu w.e.f. 01.10.1997.
S/Sh. Nikka Ram and Murari Lal engaged after 1.12.1999
were juniors to the respondent. Services of Nikka Ram and
Murari Lal were regularized on 17.11.2008 and 27.11.2008
respectively. Service of one Sh. Jeet Singh, another junior to
the respondent, was also regularized. However, service of the
respondent was regularized only on 13.10.2010. TA
.
No.4598/2015 was instituted by the respondent with the
assertion that he had completed 240 days of service after the
year 1997 onwards in each calendar year. That fictional
breaks were illegally given to him to prevent him from
completing 240 days w.e.f. 1.10.1997 to 2001. He prayed for
regularization of his service with effect from the year 2006. On
considerating the facts, learned tribunal allowed the petition
vide order dated 17.12.2015 with the observation that the
respondent 'will be deemed to have completed 240 days in
the years 1998 to 2005'. The State was directed to regularize
his services from the date his juniors were regularized
immediately on completion of 8 years service with all
consequential benefits. This order has been impugned by the
State in the instant writ petition.
3. We have heard learned counsel for the parties
and gone through the case file.
4. Contentions
4(i). The contention raised by the petitioner-State is
that the respondent had not completed 240 days of service in
the years 1997 to 2001. He worked for 78 days in the year
1997, 179 days in the year 1998, 237 days in the year 1999,
212 days in the year 2000 and 207 days in the year 2001. He
started working for minimum 240 days in each calendar year
.
from the year 2002 onwards. Accordingly, his services were
regularized in the year 2010 on completion of 8 years of
continuous service. The breaks in his service cannot be
condoned.
4(ii). Defending the impugned order, learned counsel
for the respondent submitted that (a) respondent was given
fictional breaks by the petitioner-employer during the years
1997 to 2001. These fictional breaks are liable to be ignored
for computing the period towards regularization of his service;
(b) His correct muster-roll was not prepared by the employer.
Respondent had served for more than 240 days continuously
from the year 1997 onwards, therefore, his entire service from
the year 1997 is to be reckoned while computing the period
for the purpose of his regularization; (c) Assuming for the
sake of arguments that the respondent did not complete 240
work days in each calendar year during the years 1997 to
2001, then also on ground of parity with his juniors, the
shortfall in requisite number of completed work days in his
service during these years is liable to be condoned. S/Sh.
Nikka Ram and Murari Lal, juniors to the respondent had
breaks in their services. They were similarly situated as the
respondent. However in their cases, the breaks in service
were condoned. They were regularized after taking into
.
consideration their entire service right from dates of their first
appointments. Similar benefits deserve to be granted to the
respondent; (d) CWP No.5900/2010 titled Shyam Lal Vs.
State of H.P., decided on 18.12.2012 was a case where the
Court took into consideration that Nikka Ram & Murari Lal
though were juniors to the petitioner therein, but had been
regularized prior in time. These juniors did not have to their
credit 240 days of continous service in each calendar from the
dates of their engagement. Yet all these years were included
for counting the period towards regularization of their
services. The Court besides noticing the facts of the case also
referred to a letter of the State dated 14.09.2007 to hold that
State has been following the practice of giving artificial breaks
to the workmen to prevent them from completing 240 days in
the calendar year. The writ petition filed by the petitioner
Shyam Lal was allowed. Break in his service was ordered to
be condoned. State was directed to regularize his service
from the date his juniors were regularized. Learned counsel
for the respondent submitted that there is no error in the
impugned order and prayed for dismissal of the writ petition.
5. Observations
On consideration of the case, we observe
.
following:-
5(i). The respondent was admittedly engaged on
daily wage basis w.e.f. 1.10.1997. One Shyam Lal was
engaged on 1.12.1999. S/Sh. Nikka Ram and Murari Lal were
engaged after the engagement of Shyam Lal. S/Sh. Shyam
Lal, Nikka Ram and Murari Lal were thus juniors to the
respondent. This fact is not denied by the
employer/petitioner.
5(ii) The mandays chart of Sh. Nikka Ram available
in the case file shows that he had completed 226 days of
service in the year 2000 and 211 days of service in the year
2001. He was regularized on 17.11.2008 after taking into
consideration the years 2000 and 2001. In both these years,
Nikka Ram did not have 240 working days.
Similarly Sh. Murari Lal was regularized on
27.11.2008 after taking into consideration the years 2000 &
2001. As per Mandays chart, he only had 225 and 81 days of
service in the years 2000 and 2001 respectively.
Respondent was similarly situated vis-a-vis his
juniors Nikka Ram & Murari Lal and could not be
discriminated in the matter of computation of period for the
purpose of regularization of his service. As per
.
petitioner/employer's stand, the respondent had worked for
237 days of service in the year 1999, 212 days of service in
the year 2000 and 207 days of service in the year 2001. In
the facts and circumstances of the case the service rendered
by the respondent in the year 1999 and onwards was required
to be considered for the purposes of his regularization by
condoning the shortfall.
5(iii) Sh. Shyam Lal, who was also one of the juniors
to the respondent had instituted a writ petition bearing CWP
No.5900/2010 seeking his regularization as T-mate from the
date his juniors were regularized on completion of 8 years of
service. His case was that S/Sh. Nikka Ram and Murari Lal
(persons mentioned above) were engaged on daily wage
basis after his engagement. His grievance was that these two
juniors were regularized on 17.11.2008 and 27.11.2008
respectively after condoning the break in their service period,
whereas his services had not been regularized from due date.
The employer-State refuted the claim of the petitioner Shyam
Lal on the ground that he had completed only 85 days of
service in the year 1999, 214 days in the year 2000, 229 days
in the year 2001, 215 days in the year 2002, 219 days in the
year 2003, 240 days in the year 2004, 228 days in the year
2005, 227 days in the year 2006, 249 ½ days in the year
.
2007. The Court while allowing the writ petition vide judgment
dated 18.12.2012 observed that there was shortage of 26
days in the year 2000, 11 days in the year 2001, 25 days in
the year 2002, 21 days in the year 2003, 12 days in the year
2005 and 13 days in the year 2006 in Shyam Lal's service to
complete 240 days in a block of 12 calendar months. Taking
note of letter dated 14.09.2007 issued by the Principal
Secretary (Public Works) wherein directions were issued to
ensure that the 'workmen are permitted to complete 240 days
in the year and the persons who were engaged before 2006
on the intermittent break basis, should also be given muster
roll for full month in relaxation of policy', it was observed that
the contents of the letter established that the State had been
following the pratice of giving artifical breaks to the workmen
to prevent them from completing 240 days in the calendar
year. Shyam Lal's writ petition was accordiongly allowed. It
was held that the petitioner Shyam Lal could not be denied
regularization by giving him artificial breaks.
During hearing of the case, learned Additional
Advocate General informed that the State has accepted the
judgment in Shyam Lal's case. Petitioner is senior to Shyam
Lal. The case of the respondent is similar to that of Shyam
Lal in CWP No.5900/2010. Insofar as, respondent is
.
concerned, there is shortage of 3 days in the year 1999, 28
days in the year 2000 and 33 days in the year 2001. The
Courts have always frowned upon artificial breaks in service.
[Reference (2009) 6 SCC 611 titled Mohd. Abdul Kadir &
Another Vs. Director General of Police, Assam]
Looking into the facts and circumstances of the
case, where the respondents have condoned the shortages of
many days while regularizing the services of respondent's
juniors S/Sh Nikka Ram, Murari Lal and Shyam Lal as
discussed above, the fictional breaks of few days in the
service of respondent during the years 1999, 2000 and 2001
are required to be condoned. Learned Tribunal vide impugned
order has directed the appellant-State to treat the respondent
to be in continuous service with 240 days in the years 1998
onwards. Considering the fact that the respondent as per
mandays chart had only completed 78 days in the year 1997
and 179 days in the year 1998, we modify the order passed
by the learned Tribunal in TA No.4598/2015 dated
17.12.2015, to the extent that the respondent shall be
deemed to have completed 240 days from the year 1999
onwards. The remaining part of the directions contained in the
impugned order shall remain the same.
.
With these observations, the present petition is
disposed of alongwith pending miscellaneous application(s),
if any.
( Mohammad Rafiq )
Chief Justice
March 3rd 2021 (rohit)
to ( Jyotsna Rewal Dua )
Judge
