Himachal Pradesh High Court
Keshav Ram vs State Of H.P. And Others on 1 July, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No.: 352 of 2019
.
Decided on: 01.07.2020
Keshav Ram ....Petitioner.
Versus
State of H.P. and others ...Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioner : Mr. Rajinder Sharma, Advocate.
For the respondents : M/s Somesh Raj, Dinesh Thakur
and Sanjeev Sood, Additional
Advocate Generals with Ms. Divya
Sood, Deputy Advocate General.
(Through Video Conference)
Ajay Mohan Goel, Judge (Oral)
The case of the petitioner is that he was engaged as a daily wage worker in Forest Range Arki, under Kunihar Division, Forest Circle, Bilaspur, in January, 1996. Since his initial appointment in the month of January, 1996, he had continuously been working with the respondent-Department and had completed more than 240 days in each calendar year, except for the years 2001 and 2002, when the ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP respondents did not permit him to complete 240 days by disengaging his services for some days in each month. As per .
the petitioner, on account of these fictional breaks given to him by the respondents intentionally in the years 2001 and 2002, his right of regularization/being conferred upon work charge status, has been prejudiced as the fictional breaks were intentionally given to him by the respondents in the years 2001 and 2002 to ensure that he did not complete 240 days in each calendar year so that he could not avail the benefit of policy of the Government which envisaged regularization of services of a daily wage employee on completion of 8 years of service in case he has put 240 days service in each calendar year.
2. The petitioner relies upon the judgments passed by this Court in CWP(T) No. 8145 of 2008, titled as Beli Ram vs. State of H.P. and others, decided on 02.06.2009 and CWP(T) No. 8143 of 2008, titled as Layak Ram vs. State of H.P. & Others, decided on 15.06.2009, in which judgments (copies of which stand appended by the petitioner with the petition), the fictional breaks of the petitioners therein were held to be unreasonable and arbitrary by this Court.
::: Downloaded on - 08/07/2020 20:20:45 :::HCHPAccording to the petitioner, he is similarly situated as the petitioners in said two cases, as in his case also, the fictional .
breaks, which were given to him in the years 2001 and 2002, were on account of arbitrary termination of his services for some time by the respondents and it was not as if he had abandoned the job. According to the petitioner, he was not allowed to complete 240 days in the years 2001 and 2002 despite the fact that work was available. He has accordingly prayed that the respondents be directed to condone the fictional breaks given to him in the years 2001 and 2002 and order regularization of his services on completion of 8 years service on daily wage basis with all consequential benefits.
3. In the reply filed to the writ petition by the respondents, though, they have admitted that the petitioner was working with Department since the year 1996, however, as per them, he could not earn minimum 240 days work during the calendar years 2001 and 2002, due to which, his case could not be considered for the purpose of regularization. As per respondents, the petitioner was not eligible for regularization as he had not completed minimum 8 years of service with the respondent-Department, which ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP was an essential condition for regularization of services under the policy framed by the State Government. Further as per .
respondent-Department, no fictional breaks were given to the petitioner intentionally. Paras 3 and 6 of the reply filed by the respondents, which are relevant for the purpose of adjudication of the present petition, are quoted herein below:-
"Para 3. In reply to this para it is submitted that the petitioner was working with the respondent department since 1996 but he could not earn minimum 240 days during the calendar year 2001 and 2002 due to which this period could not be considered as regular period. The petitioner had regularly worked with the respondent department with statutory period of 240 days in each calendar year w.e.f. 2003 onwards.
Para 6. In reply to this para it is submitted that the contents of this para are denied, as it is baseless and without facts. The petitioner was engaged as daily waged labourer in Forest Range Arki of Kunihar Forest Division w.e.f. January, 1996, but the fact is that petitioner is habitual to attend/left the work on ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP his sweet will. The petitioner is not eligible for his regularization as he has not completed 8 years of .
continuous service with respondent department which is essential for regularization under the policy framed by the State Government. It is also submitted that no fictional break has been given to the petitioner, which is apparently clear from the man days chart annexed by the petitioner in C.W.P. Therefore, the allegation leveled by the petitioner are baseless, frivolous and without any merit. The respondents have not made any illegality for depriving the petitioner of his rights, but it is the fault of the petitioner that he did not attend the job regularly hence he could not be considered for regularization."
On the strength of said averments, respondents-
State resisted the claim of the petitioner.
4. I have heard learned Counsel for the petitioner as well as learned Additional Advocate General and gone through the documents annexed with the petition as also the judgments relied upon by the petitioner.
::: Downloaded on - 08/07/2020 20:20:45 :::HCHP5. It is not in dispute that the petitioner was engaged on daily wage basis by the respondent-Department in the .
year 1996 and as at the relevant time, when he filed the present petition in the year 2010, in terms of man days' chart appended with the petition as Annexure P-1, the petitioner had completed more than 240 days in each calendar year from the year 1996 to 2008, except for the years 2001 and 2002. r
6. I have quoted the averments, as are contained in paras 3 and 6 of the reply filed by the respondents to the writ petition, wherein two facts are important to be referred to which are that as per the State itself (a) in terms of the reply filed by the State, the policy of regularization of the State entitled a daily wager the right of being considered for regularization upon completion of 8 years of service, subject to fulfillment of the policy conditions; and (b) petitioner was not considered for regularization after 8 years as from the date of initial engagement as there was shortfall in his working days in the year 2001 and 2002.
7. The fact that the petitioner was regularly working from the year 1996 up to the date of filing of the writ petition ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP in the year 2010 demonstrates that work was available with the respondent Department. Further the fact that except for .
the year 2001 and 2002, the petitioner had completed more than 240 days in each calender year further proves that the work, which was being performed by the petitioner, was not seasonal in nature. Even in the years 2001 and 2002, the petitioner had completed 200 days each, respectively.
8. It is not the case of the respondents that the petitioner had willfully or voluntarily given up the work in the said calendar years as there is nothing on record produced by the respondents to this effect. That being so, the only inference which can be drawn as to why the petitioner was not able to complete 240 days in each calendar year is that the fictional breaks were given to him by the Department.
This kind of practice adopted by the Government Department is exactly what stood deprecated by this Court in CWP(T) No. 8145 of 2008, titled as Beli Ram vs. State of H.P. and others, decided on 02.06.2009, in which this Court has held as under:-
"The Court is of the firm opinion that the respondents have given fictional/artificial breaks ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP willfully to deprive him the status of regularization.
The workman belongs to a lower strata of the society.
.
His rights cannot be permitted to be trampled on the basis of arbitrary and whimsical action/decision. The workman may be appointed on daily wages, but he has absolute right to earn his livelihood within the constitutional framework. It will amount to unfair labour practice, if the respondent-State is permitted to given fictional breaks to the workman. The Court does not approve this practice. This practice has severe civil and evil consequences on the workman, who most of the time is at the mercy of the employer. He is required to complete 240 days in each year to earn him the benefit of regularization. He has been working continuously and has put in 5 years of service with effect from 1996 to 2000. In case the breaks are not condoned in the present case it will cause impediment in hi way to seek regularization.
The effect of fictional/artificial breaks given to the petitioner in the year 2001 would be that he would be required to wait for another eight to nine years to complete 240 days in each year. The services which ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP he has rendered with effect from 1996 to 2000 would become otiose/ nugatory. The action of the .
respondent-State must be rationale and must conform to Article 14 and 16 of the Constitution of India. Outs is a welfare State.
Accordingly, the action of the respondents of giving the fictional breaks to the petitioner in the year 2001 is declared arbitrary. The breaks given to the petitioner in the months of January, February, March, April, May and June, 2001 are unreasonable and are accordingly condoned. It is declared that the petitioner has completed 240 days for all intents and purpose in the year 2001."
9. Similarly, in CWP(T) No. 8143 of 2008, titled as Layak Ram vs. State of H.P. & Others, decided on 15.06.2009, this Court has held as under:-
"It is evident from reply filed by the respondents that the petitioner had completed more than 240 days each year with effect from 1996 till 2000. The petitioner had completed 219 ½ days in the year 2001. The plea raised by the respondent-
department that the petitioner might have abandoned ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP his job for few days every month cannot be accepted.
The plea of abandonment is required to be proved like .
any other fact. A person belonging to lowest strata of the society cannot afford the luxury to remain absent.
It cannot be presumed that the petitioner could remain absent knowing fully well the consequences.
Rather, the respondents have not permitted him to complete 240 days in the year 2001 by giving him artificial breaks of few days every month. The petitioner has also given the details of days he was not permitted to work in the year 2002 as well. There is a pattern as per the rejoinder filed by the petitioner to the reply of the respondent-department reflecting that the respondents were bent upon not to permit the petitioner to complete 240 days every year. The completion of 240 days every twelve calendar months is important for the purpose of getting benefits under the provisions of Industrial Disputes Act, 1947 as well as to seen regularization after putting in requisite number of years."
10. Coming back to the facts of this case, as this Court is satisfied that the fictional breaks given to the ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP petitioner in the years 2001 and 2002, on account of which he was not able to complete 240 days' service in said calendar .
years, was on account of omissions on the part of the respondent-Department, for which, the petitioner cannot be made to suffer. The breaks, but natural, were given to ensure that the petitioner does not completes 240 days in said calendar years to claim regularization in terms of the policy of regularization of the State Government. This observation the Court is making because there is no cogent reasoning given in the reply by the respondent-Department as to why in the years 2001 and 2002, the petitioner was not permitted to complete 240 days service. Therefore, as the petitioner cannot be made to suffer on account of acts of omission and commission of the respondents-Department, it is ordered that it shall be deemed that in the years 2001 and 2002 also, the petitioner had completed 240 days and the State is further directed to regularize the services of the petitioner with all consequential benefits as from the date when he completed 8 years service as from the year 1996, in terms of the policy of the State Government. This Court is directing regularization of services of the petitioner upon completion of 8 years of ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP service for the reason that it stands mentioned by the respondent-Department in its reply that in terms of the policy .
of the State Government, a daily wager was entitled for regularization at the relevant time upon completion of 8 years of service. It is further directed that in case the order of regularization and consequential benefits is passed by the respondent-Department within a period of 60 days from today, then the Department shall not be liable to pay any interest upon the monetary emoluments to which the petitioner may be entitled to, however, in case this judgment is not implemented within a period of sixty days from today, then the respondent-Department shall be liable to pay interest upon the monetary emoluments, to which the petitioner may be entitled to with simple interest at the rate of 6% per annum as from the date of passing of this judgment.
11. The petition stands disposed of in above terms. No order as to costs. Pending miscellaneous application(s), if any, also stand disposed of.
(Ajay Mohan Goel) Judge July 01, 2020 (narender) ::: Downloaded on - 08/07/2020 20:20:45 :::HCHP