Between vs Unknown
2022 Latest Caselaw 7707 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 13th DAY OF SEPTEMBER, 2022




                                                           .

                                 BEFORE

            HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN





                                  &

                 HON'BLE MR. JUSTICE VIRENDER SINGH

                 CIVIL WRIT PETITION NO. 1731 OF 2021




1.
     Between:-

     THE   STATE
     PRADESH

                   OF

                       HIMACHAL
                 THROUGH     PR.

     SECRETARY (FORESTS) TO THE
     GOVT. OF HIMACHAL PRADESH.

2.   THE    DIVISIONAL        FOREST


     OFFICER     SUKET        FOREST
     DIVISION,  SUNDER        NAGAR,
     DISTRICT MANDI, H.P.
                                                      ....PETITIONERS




     (BY SH. ASHOK SHARMA, A.G.
     WITH SH. VINOD THAKUR, SH.
     SHIV PAL MANHANS, ADDL.





     A.GS., SH. RAJAT CHAUHAN,
     LAW OFFICER).





     AND

     SHRI INDER SINGH S/O SH.
     SANT   RAM,    RESIDENT   OF
     VILALGE DHALLU, P.O. BALAG,
     SUNDER      NAGAR,  DISTRICT
     MANDI, H.P.
                                                     ....RESPONDENT

     (SH. DEVI SINGH, ADVOCATE)

     This Petition coming on for orders this day, the Hon'ble Mr.
     Justice Tarlok Singh Chauhan, passed the following:-




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                                        2




                                    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 petition. 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 respondent 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 respondent 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

this case. The petition is 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





                                                            (Virender Singh)
         th
    13        September, 2022                                    Judge
              (sanjeev)