Hari Ram vs Dakshin Haryana Bijli Vitran Nigam Ltd. ... on 14 February, 2012

[Cites 0, Cited by 9]

Punjab-Haryana High Court

Hari Ram vs Dakshin Haryana Bijli Vitran Nigam Ltd. ... on 14 February, 2012

CM No.562-C of 2011(in RSA No.188 of 2011) Application for making good the deficiency in Court fee is allowed as the deficiency has been made good and in view of the averments made in the application which are duly supported by an affidavit. CM No.563-C of 2011(in RSA No.188 of 2011) Application for exemption from filing certified copy of judgment and decree dated 22.12.2009 is allowed in view of the averments made in the application which are duly supported by an affidavit. CM No.564-C of 2011(in RSA No.188 of 2011) Application for condonation of delay of 24 days in filing the appeal is allowed in view of the averments made in the application which are duly supported by an affidavit.

RSA No.188 of 2011

1. The present six appeals have been filed by the plaintiffs who are aggrieved against the concurrent findings of the judgments and decrees of the Courts below whereby their suit for declaration and injunction have been dismissed.

2. The facts have been taken from RSA No.188 of 2011 titled Hari Ram Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. Hisar through Managing Director & another since identical questions of fact and law arise from all the appeals. The issue arising pertains to the relief of decree of declaration of the office order dated 11.10.2002 whereby the plaintiffs RSA No.188 of 2011 3 have been reverted to the post of Regular Workman from the post of Assistant Linesman is wrong in law and in violation of the service rules.

3. The plaintiff was appointed as daily wager in the Sub- Divisional Office, Siwani of the Haryana State Electricity Board subsequently referred to as the Dakshin Haryana Bijli Vitran Nigam Ltd. (herein referred to as DHBVN) which succeeded to Haryana State Electricity Board. The case of the plaintiff was that he was working under the defendant since 01.03.1985 on daily wage basis in the field and vide instructions dated 12.04.1993, a decision was taken to regularise the services of the daily wage workers who had joined service upto 31.03.1986 and were continuing. The case of the plaintiff was that as he qualified for regularisation on the basis of said instructions, he was offered the post of Regular Workmate in the pay-scale of Rs.800-1150 and he accepted the offer and joined as a Regular Workmate as per the office order dated 11.05.1993. It was averred that as per the instructions dated 12.04.1993, a person was entitled for promotion as Assistant Line Man after four years of service as Workmate and the plaintiff having been completed four years on 11.05.1997, was liable to be considered for promotion, and accordingly, were promoted on 16.06.1997. Accordingly, he joined duty as Assistant Line Man on 16.06.1997. However, the defendants, vide order dated 11.08.1997, reverted the plaintiff to the post of a Regular Wrokmate without giving any reason and opportunity. The said order dated 11.08.1997 was challenged by filing a civil suit No.504-C/97 which was decreed by the Court of Sh.Pardeep Kumar, Addl.Civil Judge (SD), Hisar vide judgment and decree dated 05.01.2001 and the order dated 11.08.1997 was set aside and the plaintiff was to be continued on the said post. The appeal of the RSA No.188 of 2011 4 Board was dismissed by the District Judge, Hisar on 13.03.2001, and in regular second appeal, this Court, vide order dated 03.01.2002, modified the judgments and decrees by holding that plaintiffs were entitled to be heard and the defendants were to pass fresh orders after giving due opportunity of being heard.

4. Accordingly, service was issued to the plaintiffs and they were asked to appear on personal hearings on 25.05.2002 and the plaintiff appeared and nothing was asked from him but the plaintiffs were reverted back to the post of Workmate from the Assistant Line Man and the said orders were against the law and facts and against the instructions of the defendants. The said orders were challenged vide CWP No.16328 of 2003 and the writ petition was disposed of on 18.07.2006 with liberty to the plaintiffs to file a civil suit, and accordingly, the present civil suit was filed.

5. The defendants, in their written statement, apart from taking various preliminary objections, took the plea that the plaintiff was appointed as Mali on daily paid labour and was regularised in view of the instructions dated 12.04.1993 and as per the instructions, they had to be regularised in their own existing cadre. Inadvertently, a common seniority list was prepared by the concerned office whereby, Mali/Safai Karamchari, Chawkidar, Assistant Pump Driver and Workmate etc. were included and the plaintiff was to be regularised as a Mali as a non-technical post. Due to over-sight of instructions dated 12.04.1993 and inadvertently, the plaintiff was wrongly promoted as Assistant Lineman. The regularisation was to be against the posts where the workers had been initially appointed and due to wrong preparation of seniority list, the plaintiff was promoted as Assistant Lineman and he was not entitled for promotion as he was not technically RSA No.188 of 2011 5 qualified and was not having 5 years experience as worker in the field in his credit. The factum of plaintiff having worked in the field was also denied. It was averred that he was not eligible for appointment in field cadre for technical job and he had only worked as a Mali and only Workmates of field cadre were to be promoted as Assistant Lineman and due to the mistake, it was found that he was not eligible as per the instructions dated 12.04.1993. The plaintiff's request for promotion could not be accepted as he did not fulfilled the requirements of the policy as referred to by the notification dated 09.04.1993 and a bona fide mistake was liable to be rectified. It was also pleaded that full opportunity of hearing was given to the plaintiff after the passing of the orders of this Court and the trial Court framed the following issues:

1. Whether the office order bearing No.684 dated 11.9.2002 passed by defendant No.2 whereby the plaintiff has been reverted back tot he post of A.L.M. is wrong against contract in violation of service Rules, against the principle of natural justice and thus is not binding upon the plaintiff and is liable to be set aside? OPP

2. Whether the plaintiff is entitled to relief of mandatory injunction directing the defendants to release all the monetary benefits together with up to date interest @ 80% per annum, as prayed for? OPP

3. Whether the suit of the plaintiff is within limitation? OPP

4. Whether the suit is not maintainable in its present form? OPD

5. Whether the plaintiff is estopped by his own act and conduct by filing the present suit? OPD

6. Whether the civil court has no jurisdiction to entertain the present suit? OPD

7. Relief.

6. The issue being same in all the six suits were clubbed together and heard and after taking the evidence on record, the trial Court noticed RSA No.188 of 2011 6 that the plaintiff had been appointed as Mali as per Muster Rolls (Exhibits D23 & 30 and 41 to 43) and that the plaintiff were non-technical and could not be put against job of the Assistant Lineman which can be risky, and therefore, the reversion was in their interest as well as public interest as per the order Exhibit D12 and Exhibit D14. Accordingly, it was noticed that vide earlier litigation, the defendants had to give proper opportunity of hearing and in accordance with the provisions of law and said opportunity of hearing had been given on 28.05.2002 and the statements of the plaintiffs were recorded and in the case of Hari Ram, Mali, he appeared for personal hearing on 26.06.2002. Accordingly, it was held that they had been reverted on 11.09.2002 and the reversion was only a correction of mistake by the defendant-Department and the right of promotion would only be there if he fulfilled all the necessary conditions for promotion and since the plaintiffs did not fulfill the conditions of promotion, therefore, the promotion itself was incorrect. Accordingly, the relief of mandatory injunction was also declined. Issues No.3 to 6, having been not pressed, were decided against the defendants and accordingly, the suit of the plaintiff was dismissed.

7. The appeals filed before the lower appellate Court were dismissed by the Addl.District Judge (Fast Track Court), Hisar vide judgment and decree dated 30.04.2010, and resultantly, the present regular second appeals have been filed.

8. Counsel for the appellant submitted that since the appellants were discharging the works of Chargeman, they were entitled for promotion with effect from 16.06.1997 when they had been initially promoted and the Courts below were in error in dismissing their claim. Factually, it has been found by the Courts below that the plaintiff was appointed as daily wager as RSA No.188 of 2011 7 a Mali and his service was to be regularised in view of the Government instructions dated 12.04.1993. The regularisation was to be done on the completion of 4 years of service and that was to be done against the post of a Mali. Admittedly, by mistake, the services of the plaintiffs were regularised as Wrokmen and on the basis of a joint seniority list, the plaintiffs were wrongly promoted as Assistant Lineman after 4 years of service in view of the Government instructions. Nothing was brought on record to show that the plaintiffs had worked in the field as Workman. As per the earlier instructions dated 12.04.1993, it was held that all daily wagers would be regularised as Workman in the scale of Rs.800-1150 but subsequently, on 30.04.1993, a clarification was issued that all daily wagers who had been initially appointed against the Sweeper, Chowkidar, Mali and Cleaner would be regularised against those posts only. As per the policy, only the workmen who were working in the field as Workman were entitled to be promoted as Assistant Lineman and they had been promoted only due to the wrong promotion in the seniority list and when it had come to the notice of the Board, they had been reverted on 11.08.1997, just after 2 months from their promotion. The said order of reversion has been set aside on the technical ground of non-hearing but this Court, in regular second appeal, had allowed the appeals of the Board and held that the plaintiffs should be heard before passing of any adverse order. Admittedly, after the said decision, notice was given on 26.05,2002 to the plaintiff and on 28.06.2002, he was heard personally. The competent authority has passed an order wherein I have noticed that the plaintiffs were not technically qualified and it would be risky to put them against those responsible of job of Assistant Lineman. The issue concerned is totally factual and there is no RSA No.188 of 2011 8 dispute regarding the settled principle that a mistake can always be rectified and in the present case, the mistake came to the notice of the authorities within 2 months initially but only because of Court proceedings, the issue carried on till 11.09.2002 when the fresh orders of reversion were passed.

9. No fault can be found with the well reasoned judgments of the Courts below and no question of law much less any substantial question of law arise for consideration. Accordingly, the present appeal is dismissed in limine and the judgments and decrees of the Courts below are up-held.




14.02.2012                                  (G.S.SANDHAWALIA)
sailesh                                           JUDGE

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court