Dismissed

Sunder Lal v. Municipal Corporation

Himachal Pradesh HC6 Nov 2024CWPOA/6617/2020

Case brief

AI extract

What is this about?

The Court dismissed the petitioner's writ petition seeking regularization in a higher post as Mason. Finding disputed facts regarding the petitioner's actual work versus his posted role and noting a failure to challenge prior regularization orders, the Court held the claim untenable, dismissed the petition, but granted liberty to pursue appropriate remedies elsewhere.

What did the court decide?

Petition dismissed; liberty granted to petitioner to avail appropriate remedy before appropriate forum.

Sunder Lal Vs Municipal Corporation — Pension and Retirement Benefits | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

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CWPOA No.6617 of 2020 Decided on: 6^th November, 2024

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__________________________________________________________ Sunder Lal ...Petitioner Versus Municipal Corporation …Respondent

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Coram Hon’ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes For petitioner: Mr. Jai Ram Sharma, Advocate. For respondent: Mr. Mukul Sood, Advocate vice Ms. Reeta Thakur, Advocate.

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Ranjan Sharma, Judge (Oral)

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Petitioner, Sunder Lal, has come up before

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this Court seeking the following relief :-

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“That the respondent corporation may kindly be directed to regularised the service of applicant as mason [mistry] instead of Mazdoor with all consequential benefits w.e.f. due date, in the interest of justice.”

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FACTUAL MATRIX

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2. Case set up by Mr. Jai Ram Sharma,

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learned counsel, is that the petitioner was initially appointed as Mazdoor [Class-IV category-post] on daily wage basis during the year 1995, in the

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

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Respondent-Corporation and since his initial appointment, the petitioner has performed the work of Mason under the respondent. It is further averred that the services of the petitioner were regularized as Mazdoor on 20.04.2007 and the same was antedated on 01.12.2017 [Annexure A-1], by giving retrospective regularization as Mazdoor to the petitioner from 01.01.2004.

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3. In nutshell, the case of the petitioner is that though the petitioner was initially engaged as Mazdoor [Class-IV category-post] during the year 1995, but Respondent-Corporation has extracted the work of Mason [Class-III category-post] i.e. a higher post and since the petitioner had in fact worked as a Mason, therefore, he is entitled to be regularized as Mason, instead of regularizing him on the lower post of a Mazdoor in the Respondent-Corporation.

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PROCEEDINGS IN THE INSTANT CASE

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4. Petitioner had filed the Original Application

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No.1235 of 2019 before the State Administrative Tribunal, wherein notice was issued to respondent

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to file the reply. Consequent upon the abolition of

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the Tribunal, Original Application stood transferred to this Court and was registered as CWPOA No.6617 of 2020. Upon listing the instant case before this Court, respondent was granted time to file reply on 07.12.2023 and then on 13.12.2023.

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STAND OF STATE AUTHORITIES IN REPLY

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5. Upon issuance of notice, Respondent-

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Corporation has filed a reply-affidavit sworn on 13.12.2023. As per the reply-affidavit, the stand of

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the State Authorities is that the petitioner was appointed as Mazdoor on daily wage basis in September 1995. It is averred that his services were regularized as Mazdoor on 18.04.2007. In Para 2 of reply, a specific stand has been taken that Respondent-Corporation has never utilized the services of the petitioner as Mason. It is averred that the petitioner has not placed on record any material-proof in support of his claim. In addition, a plea that the Original Application was time-barred

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in view of Section 20 of the Administrative Tribunals Act has also been taken in the reply. In Para 6(iii), the Respondent-Corporation has specifically denied

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that the work of Mason was extracted from

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petitioner. It is stated that petitioner was initially engaged as Mazdoor and has been regularized as Mazdoor on the post-category, on which, he had served under the respondent.

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NO REBUTTAL TO THE STAND IN REPLY

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6. Stand taken by respondent-corporation in

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the reply has not been rebutted by the petitioner, by filing a rejoinder despite various opportunities having been afforded to the petitioner.

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7. Heard Mr. Jai Ram Sharma, Advocate,

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for the petitioner and Mr. Mukul Sood, Advocate, for the Respondent-Corporation.

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ANALYSIS

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8. After taking into account the entirety of

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the facts and circumstances as borne out from the pleadings herein, this Court is of the considered view, that the claim of the petitioner for regularization as Mason [Class-III category-post], instead of regularizing him as a Mazdoor [Class-IV categorypost], is not tenable, for the following reasons :-

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(i) Petitioner has made a bald statement in

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the petition that though he was initially engaged as Mazdoor [Class-IV category-post], but had actually worked as Mason [Class-III category-post] and therefore, the petitioner ought to have been considered and granted regularization as Mason [Class-III category-post], is without force, when, the petitioner has not placed on record any material to prove that the petitioner, had in fact, worked as a Mason from September 1995 onwards. In absence of any material having been placed on record, the plea of the petitioner appears to be untrustworthy and not worthy of credence and such a claim in absence of material on record, cannot be examined in these proceedings.

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(ii) Petitioner has contended that though he was engaged as a Mazdoor [Class-IV, category-post] in September 1995, but had worked as a Mason [Class-III, category-post] but on the other hand, the Respondent has specifically denied that the petitioner had ever worked as Mason and/or the work of Mason was extracted from the petitioner. Thus once the claim and counter stand of the parties

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disputed question of fact, the disputed facts cannot be examined in these proceedings are involved, and therefore, the instant petition fails and is accordingly ordered.

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(iii) Though the petitioner was initially regularized as Mazdoor [Class-IV category-post] on 20.04.2007, but in terms of the judgment passed

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by this Court in Mathu Ram’s case and other judgments, the petitioner, was granted retrospective regularized as Mazdoor [Class-IV, category-post] from the date of completion of 8 years of continuous service w.e.f. 01.01.2004 [Annexure A-1] and this benefit of retrospective regularization as Mazdoor [Class-IV, category-post] w.e.f. 01.01.2004 was accepted; then, based on the principle of estoppel and acquiescence, the petitioner has neither any locus standi nor any right to claim regularization on the higher post of Mason [Class-III, category-post] in these proceedings; and in these circumstances, the present petition is without merit and the same is disallowed.

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(iv) The petitioner has not laid any challenge

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to the orders dated 01.12.2017 [Annexure A-1], regularizing the petitioner as Mazdoor [Class-IV, category-post], which was accepted by the petitioner. In absence of any challenge to these orders, the plea that the petitioner had worked Mason and claim for regularizing as Mason is untenable.

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(v) Once the petitioner was regularized as Mazdoor [Class-IV, category-post] in 2007, then the claim for regularization as Mason [Class-III, categorypost] by filing petition only in the year 2019 is barred by limitation in view of the mandate in Section 20 of Arbitration Tribunals Act and even after the transfer of Original Application, due to abolition of State Administrative Tribunal to this Court, the instant CWPOA suffers from delay and latches.

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CONCLUSION AND DIRECTIONS:

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9. In view of above discussion and for the reasons recorded hereinabove, the instant petition is devoid of any merit and the same is accordingly dismissed.

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10. Before parting with the case, this Court

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observes that since disputed questions of fact regarding the claim of petitioner for regularization as Mason [Class-III] despite having been regularized as Mazdoor [Class-IV] has been controverted by the Respondent-Corporation, in it’s reply, therefore, as prayed by Learned Counsel for petitioner, in order to secure, the ends of justice, this Court grants liberty to the petitioner to assert his claim, by availing appropriate remedy before an appropriate forum in accordance with law, if so desired.

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In aforesaid terms, the instant petition stands dismissed, with liberty as in Para 10 supra; and all pending applications shall stand disposed of accordingly.

(Ranjan Sharma)

Judge

(Chiranjeev)

November 6, 2024

Sunder Lal v. Municipal Corporation

Case brief

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Sunder Lal v. Municipal Corporation

Case brief

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