Allowed

Bakshi Ram v. State of Hp and Ors.

Himachal Pradesh HC19 Dec 2024CWP/8060/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a regularized workman seeking payment of arrears. The Court held that since the delay in granting actual monetary benefits from the retrospective regularization date was attributable to the employer, the petitioner, being similarly situated to another workman whose benefits were granted via precedent, was entitled to relief.

What did the court decide?

Respondents directed to release actual monetary benefits from the retrospective date of regularization (01.12.2008) till the date of issuance of the regularization order (30.07.2015) within four weeks

Bakshi Ram Vs State of Hp and Ors. — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CWP No.8060 of 2022

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Decided on: 19^th December, 2024

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_________________________________________________________________ Bakshi Ram ....Petitioner Versus State of H.P. & Ors. …Respondents ________________________________________________________________ Coram_

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Ms. Justice Jyotsna Rewal Dua

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1 Whether approved for reporting?

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_________________________ For the petitioner:	_________________________________ Mr. Rahul Mahajan, Advocat	_______ e.
For the respondents:	Mr. Sikandar Bhushan, Advocate General.	Deputy

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Jyotsna Rewal Dua, Judge

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Respondents regularized the services of the petitioner from retrospective date on notional basis. Actual monetary benefits were restricted to him from the date of issuance of order of regularization. Feeling aggrieved, petitioner has instituted this writ petition, seeking direction to the respondents to pay him difference of arrears from the date of retrospective regularization, till the date of issuance of order of regularization.

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1 Whether reporters of Local Papers may be allowed to see the judgment? yes

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2. Facts.

2(i) Petitioner was engaged as Beldar on daily wage

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basis in the respondent Public Works Department in the year 1988. It is his case that from the date of his engagement as

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daily waged Beldar till the year 2007, respondents gave him fictional breaks and further that pursuant to the direction issued by the Higher Authorities of Public Works Department on 13.09.2007, he was issued proper muster-roll of continued service w.e.f. 30.09.2007. Petitioner raised industrial dispute that time to time termination of his service w.e.f. the year 1999 was contrary to the provisions of Industrial Disputes Act. Petitioner was one of the claimants before the learned Labour Court–cum-Industrial Tribunal in Reference No.63 of 2013, wherein following reference was to be adjudicated: -

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" Whether time to time termination of the services of S/Sh. Ravinder Kumar S/O Sh. Raju Ram from the year 1998, Gurbachan Singh S/O Sh. Panjku Ram from 2000, Ranjeet Singh S/O Rikhi Ram from 1998, Raj Kumar S/O Sh. Dhyan Singh from 1998, Suresh Kumar S/O Sh. Hachhu Ram from year 2002, Bakshi Ram S/O Sh. Joban Lal from 1999 , Ram Singh S/O Sh. Relu Ram from 1999 and Sarwan Kumar S/O Sh. Nathu Ram from the year 1998 to the y ear, 2007 by the i) The Executive Engineer, HPPWD Division Baijnath,

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Distt. Kangra, H.P. ii) The Executive Engineer, HPPWD Division Balakrupi, Distt. Kangra, H.P. without complying with the provisions of the Industrial Disputes Act, 1947, as alleged by the workmen, is legal and justified? If not, what amount of back wages, salary, seniority, continuity in service, past service benefits and compensation the above workers are entitled to from the above employers?"

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2(ii) Learned Labour Court-cum-Industrial Tribunal

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allowed the reference petition on 30.07.2015, holding that petitioner alongwith others (named in the award), were in continuous and uninterrupted service with the respondents from the date of their initial engagement. The breaks given to them by the respondents were fictional in nature and would not have any effect on their seniority and continuity in service. Petitioner’s seniority was to be reckoned from the date of his initial engagement. He was deemed to be in continuous service with the respondents with all consequential benefits, except back wages.

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Respondents were also directed to consider the case of regularization of the petitioner at the time when his juniors had been regularized as per the State policy governing daily wagers. Operative part of the award reads as under:-

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“18. As sequel to my findings on foregoing issues, it is

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held that the petitioners namely Ravinder Kumar, Raj, Kumar, Suresh Kumar, Bakshi Ram, Ram Singh and Sarwan Kumar were in continuous uninterrupted service with the respondents from the date of their initial engagement, the breaks given by the respondents being fictional in nature shall have no effect on the seniority and continuity of service of the petitioners and their seniority shall be reckoned from their initial date of engagement. Accordingly, claim petition is hereby allowed in part and reference is accordingly answered in their favour. The petitioners abovenamed shall thus be deemed to be in continuous service of respondents with all consequential benefits (excluding Gurbachan Singh s/o Shri Panjku Ram and Ranjeet Singh s/o Rikhi Ram) except back wages who shall, however, be considered for regularization by respondents at the time when their juniors have been regularized as per policy governing daily wagers as framed by State Govt. and operative from time to time. In peculiar circumstances of case, parties shall bear their own costs.”

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2(iii) Respondents implemented the above award and

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also considered petitioner’s case for regularization of his services. Office order was issued by the respondents on 30.07.2015, regularizing petitioner’s services. It is an admitted case of the parties that notional date of retrospective regularization of the petitioner was fixed as 01.10.2008 and accordingly, his pay had been fixed on notional basis from the date of retrospective regularization i.e.

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01.10.2008. The actual benefits, however, were granted to the petitioner from prospective effect i.e. 01.08.2015 on issuance of the regularization order dated 30.07.2015.

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2(iv) Feeling aggrieved against the non-grant of actual monetary benefits from the retrospective date of regularization of his services, petitioner preferred Original Application (O.A) No. 286 of 2017, before the erstwhile H.P. Administrative Tribunal (Tribunal). Learned Tribunal disposed of the O.A on 13.07.2017 with direction to the respondents to consider the case of the petitioner in accordance with law laid down in Rakesh Kumar Vs. State

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of H.P and others² .

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Respondents in compliance to the aforesaid direction ,considered the case of the petitioner and rejected it on 18.11.2017.

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2(v) The next segment of the case pertains to another Reference No.9 of 2011, preferred by thirty one persons including one Sh. Sansar Chand, wherein, following reference had come up for adjudication before the learned

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Labour Court-cum-Industrial Tribunal.:-

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2 CWP No. 2735 of 2010 decided alongwith connected matters on 28.07.2010

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"Whether demand notices dated -12.8.2010 & 05.9.2010 served by the Pradhan, Him Shakti P. W.D. (B.M.S.) Sub Division Jai Singhpur, Distt. Kangra, H.P. before the Executive Engineer, HPPWD Division Baijnath, Distt. Kangra, H.P. to consider the period of fictional breaks given to 31 workmen as per "Annexure-A" (Copy-enclosed) towards continuity in their service from the date of their initial appointment till September, 2007 when they were given work in continuity and to regularise them alongwith seniority in service is legal and justified? If yes, to what service benefits, seniority and relief the above workmen as per Annexure -A are entitled to from the concerned employer? If not, what are its legal effects?"

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The above reference was similar to the one in the case of the present petitioner in Reference No. 62 of 2013. Learned Tribunal answered Reference No.9 of 2011 (in case of Sh. Sansar Chand and thirty others) in the similar manner as answered in case of petitioner in Reference No. 62 of 2013. Operative part of the award passed by the learned Labour Court-cum-Industrial Tribunal in Reference No. 9 of 2011 reads as under:-

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“17. In view of my findings on issue No.l above, the petition succeeds in part and the some is partly allowed. The breaks given from the year 2003 onwards to the 31 labourers represented by the petitioner shall be deemed to have worked for 240 days without any break and the fictional breaks given are held to be wrong, illegal and

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discriminatory, in view of the work given to Kundan Lal, daily wager from the year 2003 onwards for more than 240 days a year. Therefore, the 31 labourers as per Annexure A, shall be entitled to seniority and continuity in service from the year 2003 onwards, except back wages. These workers shall be considered for regularization by the respondent as per the policy governing the daily wagers, as framed by the State Government and operative from time to time. In the peculiar facts of the case, the parties shall bear their own casts.”

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The decision of the learned Labour Court-cum-

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Industrial Tribunal in Reference No.9 of 201l was similar to

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the decision rendered in the reference case filed by the petitioner.

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2(vi) Respondents set-down to implement the award passed in Reference No. 9 of 2011. Sh.Sansar Chand and other claimants were, inter-alia, regularized retrospectively, but the actual monetary benefits were restricted to them from the date of issuance of the regularization order. Feeling aggrieved, Sh. Sansar Chand preferred O.A. No. 230 of 2017 before the erstwhile H.P. Administrative Tribunal. The O.A. was allowed on 26.03.2018. Sh. Sansar Chand was held entitled to actual arrears of pay/financial benefits w.e.f. the date when his service was regularized on notional basis

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alongwith interest @ 9% per annum. Respondents-State preferred CWP No. 182 of 2019, assailing the decision rendered in O.A. No. 230 of 2017. While dismissing the writ petition, Hon’ble Division Bench of this Court held as

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under:-

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“5. Having given our thoughtful consideration to the submissions, we do not find any merit therein. We say so for the reason that the respondents were undisputedly reinstated in service by the Labour Court-cum-Industrial Tribunal with continuity of service, though part of back wages was denied to them. Once the respondents were reinstated in service with continuity of service, they shall be deemed to have been serving uninterruptedly. It could not be seriously disputed that had the respondents been in service, but for their illegal retrenchment, their services would have been regularized in the year 2012 itself. It was only after their reinstatement pursuant to the award passed in the year 2014 that their claim for regularization was belatedly considered in the year 2015. Such delay is not attributable to the respondents. Moreover. in case the consequential financial benefits arising out of the order of regularization of services are denied to the respondents, it would lead to a conflict between the order reinstating them in service with continuity of service, especially in the light of the fact that such an award of the Labour Court has already been accepted by the Authorities.

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6. As regard to the preliminary objection of limitation, we do not find any merit therein. It is a matter of record

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that the respondents had immediately after passing of the order of regularization in the year 2015, approached the Tribunal within limitation and they were asked to make representations to the competent authority. They availed such remedy and their representations were turned down in the year 2017 only, i.e., on 21.03.2017. If the period of limitation is counted from the date post rejecting their claim, the second Original Application filed by them was admittedly within limitation.

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7. Taking into consideration the aeration of the period for which arrears of pay are required to be paid to the respondents, who are Class-IV employees, we do not deem it necessary to interfere with the order under challenge. The petition is accordingly dismissed, so also pending miscellaneous applications, if any.”

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In the aforesaid decision, it was held that

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petitioner therein (Sh. Sansar Chand) had been re-instated in service by the learned Labour Court-cum-Industrial Tribunal with continuity in service, though part of back wages was denied to him. Once Sh. Sansar Chand had been re-instated with continuity in service, he was deemed to be serving uninterruptedly. Hence, it cannot be disputed that had Sh. Sansar Chand been in service, but for his illegal retrenchment, his service would have been regularized in the year 2020 itself. It was only after his reinstatement, pursuant to the award passed in the year 2014, his claim for

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regularization was belatedly considered in the year 2014. Such delay cannot be attributed to the workman Sh. Sansar Chand. Therefore, order of the Tribunal holding Sh. Sansar Chand entitled for consequential financial benefits arising out of order of regularization of his service was held justified.

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2(vii) Based upon the decision rendered in CWP No. 182 of 2019, in case of Sh. Sansar Chand, present petitioner preferred his representation dated 24.03.2021 to the respondents seeking arrears/ consequential benefits from the date of his retrospective regularization (01.12.2008) till the date of issuance of the regularization order (31.07.2017) on actual basis. Respondents rejected the case of the petitioner on 17.06.2021. Hence, this writ petition has been filed for grant of following substantive relief: -

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“(a) The Hon'ble Court may kindly be pass the direction to the respondents to pay the difference of arrears to the petitioner w.e.f. 01.12.2008 to 31.7.2017 along with 12% interest per decision of this Hon'ble Court rendered in CWP No. 182 of 2019, titled State of H.P. & Others vs. Sansar Chand and other, decided on 25.2.2019.”

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3 . Learned Deputy Advocate General submits that

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petitioner cannot be allowed benefits as have been granted to

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Sh. Sansar Chand since petitioner’s claim suffers from delay and laches. Reliance in this regard is placed on the decision

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rendered in Karan Singh Vs. State of H.P. and others³ .

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4. Heard learned counsel for the parties and

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considered the case file.

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It has not been disputed that terms of the reference in Reference No. 62 of 2013 (in case of the petitioner) were the same as in Reference No. 9/2011 (in case of thirty-one workmen including Sh. Sansar Chand). It is also not in dispute that award passed in Reference No. 62 of 2013 on 30.07.2015 was similar to the one passed on 30.06.2014 in Reference No. 9 of 2011. Petitioners in both the awards were held entitled to the similar benefits and similar directions were issued to the respondents. The respondents implemented both sets of the awards in case of the claimants therein and issued regularization orders, but on notional basis from retrospective dates and actual basis from the date of issuance of regularization orders. petitioner’s representation seeking actual benefits from the notional date of regularization was turned down by the respondents. Petitioner moved learned Administrative Tribunal. Pursuant

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3 CWP No. 52 of 2020 decided on 15.11.2021

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to the directions issued by the Tribunal in O.A.(D) No. 286 of 2017, respondents considered and rejected the case of the petitioner on 18.11.2017. In the meanwhile, Sh. Sansar Chand, one of the claimants in Reference No. 9 of 2011, also moved the Tribunal, seeking the same relief as prayed by the present petitioner. Original Application (D) No. 230 of 2017 filed by Sh. Sansar Chand was allowed by the Tribunal on 26.03.2018. He was held entitled to actual benefits from the date his services were regularized on notional basis. This decision was affirmed by Hon’ble Division Bench of this Court in CWP No. 182 of 2019.

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Learned counsel for the petitioner pointing out to paragraph-8 of the writ petition submitted that the respondents had implemented the decision rendered in O.A. (D) No. 230 of 2017 as affirmed on 25.02.2019 in CWP Nol. 182 of 2019, not only in case of Sh. Sansar Chand, but in case of all other thirty workmen who were claimants in Reference No. 9 of 2011 even though many out of the other thirty workmen had not moved the Court against the order passed by the respondents restricting the grant of actual monetary benefits from the date of issuance of regularization

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orders. Petitioner is also similarly situated and, therefore, he could not have been discriminated.

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There is considerable force in the contention of the learned counsel for the petitioner. The facts as noticed above, makes it amply clear that that the references being adjudicated by the learned Labour Court-cum-Industrial Tribunal in different claim petitions filed by petitioner and Sh. Sansar Chand had similar terms. The awards passed in the two reference petitions were also on similar lines. The subsequent action taken by the respondents regarding regularization of claimants was also on same pattern i.e. Sh. Sansar Chand & thirty others and the petitioner were though granted benefits of regularization, but notionally from retrospective dates and on actual basis from prospective dates i.e. from the date of issuance of regularization orders. Pursuant to the decision rendered in CWP No. 182 of 2019 in case of Sh. Sansar Chand, he was released actual monetary benefits from the notional date of regularization of his services. Respondents implemented the above decision on their own in case of all other thirty workmen in Reference No.9 of 2011 as well, many of them have not moved the Court

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seeking actual benefits from the notional date of regularization of their services. Petitioner, therefore, is also entitled for the grant of actual monetary benefits from his deemed date of regularization. Significantly, Hon’ble Division Bench of this Court while deciding CWP No. 182 of 2019 (originating from the order passed by the learned Tribunal in case of Sh. Sansar Chand) has held that once the workman was reinstated in service with continuity of service, he is to deemed to be serving uninterruptedly; Had he been in service, but for his illegal retrenchment, his service would have been regularized in time; The fault for delayed consideration of workman’s case for regularization lies with the respondents who reinstated the workman pursuant to the award passed in his favour; Such delay is not attributable to the workman; In such situation, if consequential benefits arising out of order of regularization of services are denied to the workman, it would lead to conflict between the order reinstating him in service with continuity of service. The above observations squarely apply to the facts of the instant case as well. In view of above, petitioner’s claim of actual monetary benefits cannot be said to be suffering from delay

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and laches. Petitioner had instituted OA (D) No.286 of 2017 for getting actual monetary benefits. In compliance to the directions issued by the learned Tribunal on 13.07.2017 in the Original Application, respondents considered the case of the petitioner and rejected it on 18.11.20217. In the meanwhile, learned Tribunal allowed a similar claim O.A. (D) No. 230 of 2017, filed by Sh. Sansar Chand on 26.03.2018. This decision remained under challenge before this Court till 25.02.2019. Respondents implemented the directions and granted actual monetary benefits even to those workmen who had not prayed for grant of actual benefits from the notional date of regularization. Present Writ petition instituted on 19.01.2022, under the circumstances, cannot be said to be suffering from delay and laches.

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5. In view of above discussion, this writ petition is allowed. Respondents are directed to release actual monetary benefits to the petitioner from the date his services were regularized on notional basis i.e. 01.012.2008 till the date of issuance of regularization order. This exercise be carried out within a period of four weeks from today.

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Pending miscellaneous application(s), if any, shall

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also stand disposed of.

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Jyotsna Rewal Dua Judge

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December 19, 2024 R.Atal

Bakshi Ram v. State of Hp and Ors.

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Bakshi Ram v. State of Hp and Ors.

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