Soma Devi Vs State of Haryana and Others

The present petition has been filed seeking setting aside of the order dated 25.10.2016, whereby the respondents conveyed that no action could be taken on the application submitted by her for consideration under the Regularisation Policy dated 01.10.2003 by relying on the communication issued by the Government of Haryana bearing letter No. 6/26/2015-ICSI dated 15.09.2016, to the effect that no employee shall be regularised under any policy issued on or after 16.06.2014. Further, the petitioner also assails the communication dated 29.08.2016 issued by the Executive Engineer, Provincial Division, PWD (B&R), Panchkula, whereby it was conveyed that the petitioner’s husband, Sh. Khushi Ram, did not fulfill the terms and conditions for regularisation under the Policy of 2014. It was observed that the deceased employee had passed away on 20.11.2013, whereas the requirement for regularisation mandated a minimum continuous service of three years up to 28.05.2014, and the employee was required to be in service

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as on the cut-off date.

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Counsel for the petitioner submits that the husband of the petitioner was engaged by the respondents on 15.11.1992 as a Beldar , and his services were terminated on 03.10.1996 without following the mandatory provisions of the Industrial Disputes Act, 1947. It is further contended that seven other similarly placed co-workers were also terminated on the same date. Consequent thereto, an industrial dispute was raised by the husband of the petitioner along with the said co-workers, which culminated in Reference No. 18 of 2000 being adjudicated by the Labour Court, Ambala, and reference being rejected vide award dated 03.04.2001. Aggrieved by the said award, the husband of the petitioner, along with the other seven co-workers, filed CWP-8648-2003 before this Court. The writ petition was allowed in terms of the judgment delivered in CWP-8510-2003 titled Het Ram Vs. The Executive Engineer and Others, wherein a co-worker of the husband of the petitioner, who had also been terminated on the same date, had been reinstated. Pursuant to the said order, the husband of the petitioner was to be reinstated with continuity of service and to be granted full back wages with effect from the date of issuance of the demand notice, namely, 18.09.1998. The operative part reads thus:-

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“It is therefore apparent that his termination 30.10.1996

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was in clear violation of mandatory provisions of section 25F of the Act. In view of the above, the order dated 30.10.1996 by which the petitioner-workman was retrenched from service is liable to be set aside. The same is accordingly set aside. The

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impugned Award of the Labour Court dated 3.4.2001 is also set aside. The petitioner-workman shall be reinstated into service, with continuity in service, and full back wages with effect from the date of issue of the demand notice i.e. 18.9.1998.”

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The State challenged the said judgment before the Hon’ble Supreme Court, however, SLP against the same was partly allowed and only the back-wages were reduced to 40%. Subsequently, the deceased husband of the petitioner submitted a representation to the respondents seeking regularisation of his services with effect from 01.10.2003. It is contended that other similarly placed co-workers, whose’s services had been terminated along with the husband of the petitioner and who were reinstated with continuity of service pursuant to judicial orders, were regularised by the respondents vide Office Order No. 137 dated 11.09.2014. However, the claim of the petitioner for corresponding financial benefits was declined on the ground that her husband had passed away on 20.11.2013. Counsel for the petitioner contends that she is entitled to the financial benefits which would have accrued consequent to the regularisation of her husband’s services in terms of the Regularisation Policy dated 01.10.2003.

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Learned State counsel contends that the claim of the petitioner for regularisation of the services of her deceased husband under the Regularisation Policy dated 01.10.2003 could not be entertained, as the Policy specifically mandated that the employee must be in service as on the relevant date. In view of the fact that the husband of the petitioner had

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expired on 20.11.2013, it is submitted that the respondents were precluded from passing any order of regularisation in his favour, and consequently, the impugned orders are claimed to have been rightly passed.

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Learned State counsel however is not in a position to dispute that the Division Bench of this Hon’ble Court had directed reinstatement of the deceased husband in service with continuity. He further does not dispute that other similarly situated co-workers, whose’s services were terminated along with the husband of the petitioner, were regularised by the respondents vide Office Order No. 137 dated 11.09.2014 with effect from 01.10.2003.

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He also not in a position to dispute that the claim of the husband of the petitioner for regularisation as on 01.10.2003 was neither considered nor reflected from the official records. 7. Having heard the learned counsel appearing on behalf of the respective parties and having perused the records and documents annexed to the instant petition with their able assistance, it emerges as an undisputed fact that the late Sh. Khushi Ram was engaged by the respondents on 11.11.1992. His services, however, were terminated on 03.10.1996. Subsequently, the Division Bench of this Hon’ble Court, upon consideration of the legal and factual matrix, directed reinstatement of the deceased with continuity in service. The said direction stood affirmed and became binding. Consequently, as on the date of the Regularisation Policy of 2003, the late husband of the petitioner was fully eligible for consideration and regularisation under the said Policy. It was therefore the statutory obligation of the respondents to ensure that all persons fulfilling the terms and

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conditions of eligibility under the Policy were duly recommended for regularisation. Regrettably, the respondents failed to discharge this obligation, compelling the deceased-husband of the petitioner, during his lifetime, to submit an application for regularisation of his services. By the time the said application was taken up for consideration by the respondents, the applicant-husband of the petitioner had, unfortunately, passed away.

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The delay in extending the benefit of regularisation cannot be attributed to any lapse on the part of the deceased but solely to the inaction of the respondents in failing to implement a policy and to extend the benefits thereunder ,to which he was lawfully entitled. Notably, the entitlement arose not only by virtue of the terms of the Regularisation Policy of 2003 but also in accordance with the binding judgment of the Division Bench of this Court, which had directed reinstatement in service with continuity. The cumulative effect of these circumstances demonstrates that the petitioner is justly entitled to claim the benefits of regularisation of services of her deceased husband and the same to be provided by the respondents.

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It is further undisputed that the respondents had, by order dated 11.09.2014, granted similar benefit of regularisation to other similarly situated co-workers with effect from 01.10.2003. Needless to mention that the eligibility of a person for regularisation is to be examined strictly in accordance with the terms and conditions of the Policy under which the claim is made. In the present case, the respondents have failed to apply their mind to the claim of the late husband of the petitioner under the Regularisation Policy dated 01.10.2003 and, instead, erroneously declined

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the same by referring to the provisions of the Policy of 2014. No explanation has been furnished as to why the claim of the late husband of the petitioner was not adjudicated in consonance with the Policy of 2003, whereas the claims of other similarly placed employees were accepted and the benefit of regularisation as Beldar with effect from 01.10.2003 was duly granted.

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In view of the foregoing, the instant writ petition is hereby allowed . The impugned communications/orders dated 25.10.2016 and 29.08.2016, whereby the claim of the petitioner for deemed regularisation of service of her late husband, Sh. Khushi Ram, with effect from 01.10.2003, was declined, are set aside. The respondents are directed to extend the benefits of regularisation to the petitioner in accordance with the applicable Policy dated 01.10.2003, similar to the other similarly situated employees, and to take consequential action.

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The respondents are accordingly directed to pass a consequential order regularising the services of the late husband of the petitioner, Sh. Khushi Ram, with effect from 01.10.2003, at par with other similarly situated employees whose services were regularised by order dated 11.09.2014. The respondents shall also ensure that all admissible financial benefits are calculated notionally w.e.f. 1.10.2003 and actually w.e.f. the date when Sh. Khushi Ram was re-instated in service pursuant to the orders of this Court. The assessed financial entitlements shall thereafter be disbursed to the petitioner.

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