Himachal Pradesh High Court
Between vs Unknown on 18 October, 2022
Bench: Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 18th DAY OF OCTOBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION No. 3421 OF 2019
Between:-
SH. BABU RAM, SON OF SH. MUNNA RAM,
RESIDENT OF VILLAGE MALONWALA BHOOD,
P.O. SAMBHUWALA, TEHSIL NAHAN,
DISTRICT SIRMAUR, H.P. EX. T-MATE,
HPSEB LTD. DIVISION NAHAN,
DISTRICT SIRMAUR, H.P.
r ...PETITIONER
(BY SH. A.K. GUPTA, ADVOCATE)
AND
1. THE HPSEB LTD. THROUGH ITS EXECUTIVE
DIRECTOR (PERS.) WITH HEADQUARTERS
AT SHIMLA-4.
2. THE CHIEF ACCOUNTS OFFICER,
HPSEB LTD. WITH HEADQUARTERS
AT SHIMLA, H.P.
3. THE EXECUTIVE ENGINEER,
HPSEB LTD. DIVISION NAHAN,
DISTRICT SIRMAUR, H.P.
.. RESPONDENTS.
(SH. T.S. CHAUHAN, ADVOCATE,
FOR THE RESPONDENTS)
RESERVED ON: 12.10.2022.
DECIDED ON: 18.10.2022.
______________________________________________________________
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2
This petition coming on for pronouncement of
judgment this day, the Court passed the following:
ORDER
.
By way of instant petition, petitioner has prayed
for following substantive reliefs:
"i) That the respondents may be ordered to take
into account the service rendered by the petitioner
on daily wage basis/temporary basis w.e.f. 1987
till 1998 for the purpose of pension and the entire
service may be ordered to qualify and the same
may be added to the qualifying service for the
purpose of pension and other retiral benefits and
the pension of the petitioner may be ordered to be
re-fixed from the due date with all the benefits
incidental thereof."
2. The facts as pleaded in the petition are that the
petitioner was engaged as T-mate by the respondents in
March, 1987. His services were brought on work
charge/regular establishment w.e.f. 01.01.1998. Petitioner
retired in November, 2012 and he is getting pension on the
basis of 13 years of his service after 01.01.1998.
3. The petitioner claims that his services prior to
01.01.1998 are also liable to be counted as qualifying
service for pension and other retiral benefits. As per
.
petitioner, he was employed as temporary workman in the
regular establishment of respondent No.1 prior to 1.1.1998
and as such, his entire service would qualify for the purpose
of pension as per the CCS(Pension) Rules, 1972. The
petitioner further claims that the respondents had prepared
his service book and he was also subjected to medical
examination before his appointment which means that
petitioner was temporary workman.
4. The claim of the petitioner has been contested by
respondents. It is averred that petitioner is estopped from
filing the petition and is also not entitled for relief on
account of delay and laches. On merits, it is submitted that
the services of the petitioner rendered as daily wager cannot
be counted towards pensionary benefits.
5. I have heard learned counsel for the parties and
have also gone through the records of the case carefully.
6. The petitioner has placed reliance upon the
Standing Orders applicable to respondent No.1. Petitioner
submits that since his services were utilized continuously
.
from 1987 till 1997 with 240 days in each calendar year,
his employment cannot be said to be casual. As per the
petitioner he has worked as a temporary employee in
regular establishment of respondent No.1 which gives him
right to claim the period of service rendered by him before
01.01.1998 to be counted towards qualifying service for
pension.
7. Clause 5 of the Standing Orders relied upon by
the petitioner read as under:
"5. The Board shall have the following classes of
workmen in the different establishments: -
(a) Regular establishment having temporary and
permanent workmen.
(b) Workcharge establishment having
workcharge workmen.
(c) Casual establishment having Casual/
Temporary workmen.
(d) Apprentices.
Explanation: -
(a) The workmen (Temporary & Permanent) on
regular establishment shall be governed by
F.R.& S.R.
(b) The workmen in workcharge establishment
.
shall also be governed by F.R. & S.R. but for
the purpose of leave the provisions of these
Standing Orders shall apply.
(c) A 'Temporary Workman' in casual
establishment shall mean a workman who
has been engaged for a work which is
essentially of a temporary nature and likely
to be finished within a limited period.
(ii) A 'Casual workmen' in Casual establishment
is a workman whose employment is of a
Casual nature.
(iii) A Casual Workman shall be said to be in
continuous service for a period if he is, for
that period, in un-interrupted service,
including service which may be interrupted
on account of reasons as indicated hereunder
in the Note.
Where a Casual workman is not in continuous
service within the meaning of above sub-para for a
period of one year, he shall be deemed to be in
continuous service for one year, if he, during a period
of twelve calendar months preceding the date with
reference to which calculation is to be made, has
actually worked in the different areas of the Pradesh
as under:-
1. All areas of H.P. except
Lahaul & Spiti 240 days
.
District Bharmour area
in Chamba Distt.,
and Pangi/Killar areas in
Chamba Distt.
2. Lahaul & Spiti Distt. 140 days
3. Bharmour area in Chamba Distt. 180 days
4. Pangi and Killar area in
Chamba Distt. 120 days
The Casual Workman fulfilling the above
criteria shall be made temporary in its services in
the Casual establishment and shall be given 10%
additional marks at the time of making regular
selections for the work-charged/regular posts, if he
has un-interrupted service of five years in the Board
and he fulfills the eligibility qualifications and has
been employed through employment exchange.
Further, he shall be given age relaxation if he
becomes overage by serving in the Board on daily
wages.
**Note.***
"Uninterrupted Service" includes service interrupted
on account of the following reasons, namely: -
(i) Sickness, as certified by a Doctor or
Employees State Insurance Scheme where
such scheme is applicable, or elsewhere by
a Registered Medical Practitioner.
(ii) Accident.
(iii) Authorised leave.
.
(iv) Lay-off as defined in the Industrial Dispute
Act, 1947 (XIV) of 1947)
(v) Strike which is not illegal.
(vi) Lock-out.
(vii) Cessation of work which is not due to any
fault of the workman concerned.
(viii) Involuntary employment.
(d) Apprentice: An apprentice is a learner who is
paid an allowance during the period of his training."
8. According to aforesaid provision, respondent No.1
maintains four types of establishments i.e. Regular
establishment, Work-charge establishment, Casual
establishment and Apprentices. As per his own admission,
petitioner was placed in work-charge establishment w.e.f.
01.01.1998. It being so, the petitioner cannot claim to have
worked in regular establishment prior to 01.01.1998
because a person working in regular establishment will not
be again taken on work charge establishment, whereas vice
versa can be true. Having accepted the work charge status
w.e.f 01.01.1998, petitioner cannot subsequently turn
around and claim that his employment prior to 01.01.1998
was in regular establishment. Explanation (b) to Clause 5
.
reproduced above, clearly provides that only the workmen
on regular establishment and in workcharge establishment
shall be governed by F.R. & S.R. subject, however, to an
exception that in case of work charge employees, the
provisions of the Standing Orders shall apply for the
purpose of leave.
9. Further, the petitioner has otherwise failed to lay
any factual foundation to establish his claim. Petitioner has
not placed on record his initial order of appointment or the
document by virtue of which he was conferred work charge
status w.e.f. 01.01.1998.
10. Petitioner has tried to draw strength to his case
from judgment passed by the Division Bench of this Court
in Veena Devi vs. Himachal Pradesh State Electricity
Board Ltd. and another, CWP No. 5400 of 2014, decided
on 21.11.2014. Perusal of said judgment reveals that the
reliance thereon by petitioner is misplaced. The same
cannot be used by petitioner to propagate his cause as the
facts in the case of Veena Devi (supra) were entirely
different. Petitioner in said case was appointed as a Clerk
.
on contract basis and had worked as such continuously. It
was on consideration of her contract employment vis-à-vis
the provisions of Rule 17 of the CCS (Pension) Rules, 1972,
that the matter was decided.
11. The petitioner was granted work charge status on
01.01.1998. He did not raise any grievance at that stage. He
retired in November, 2012 and kept silent thereafter
without any justifiable cause. The petition has been filed at
highly belated stage, hence the petition also suffers from
vice of delay and laches.
12. Resultantly, there is no merit in the petition and
the same is accordingly dismissed, so also the pending
application(s) if any.
18th October, 2022 (Satyen Vaidya)
(GR) Judge
