Himachal Pradesh High Court
Bansi Ram vs State Of H.P. And Others on 17 October, 2019
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
LPA No. 63 of 2016
.
Decided on: 17.10.2019
Bansi Ram ...Appellant/Petitioner.
Versus
State of H.P. and others ...Respondents.
___________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? 1 No
For the Appellant: Mr. Pawan K. Sharma, Advocate.
For the Respondents: Mr. Vinod Thakur, Addl. Advocate General
with Mr. Bhupinder Thakur and Mr.
Narinder Singh Thakur, Dy. Advocate
Generals.
Justice Tarlok Singh Chauhan, J.(Oral)
Aggrieved by the judgment passed by learned Single Judge in CWP No. 5306 of 2013, decided on 22.10.2014 whereby the petition filed by the appellant/petitioner was partly allowed, the appellant has filed the instant Letters Patent Appeal.
2. The petitioner was appointed as a daily waged driver by the respondents in the year 1999 and 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 21/10/2019 20:25:01 :::HCHP 2 continued as such till his termination on 22.12.2012 on the charges of misconduct. The petitioner thereafter .
approached the H.P. Industrial TribunalcumLabour Court, Dharamshala, District Kangra and vide award dated 25.7.2006 allowed the claim of the petitioner and directed the petitioner to be reinstated in service and also granted seniority by the respondents.
3. In September, 2006 the petitioner submitted his joining report, however, the same was not accepted by the respondents and it is only pursuant to the explanation called for by the Labour Commissioner that the petitioner was finally reengaged in March, 2007 and since then he had been continuously working.
4. It is further pleaded that on 6.10.2007 the services of one Bhagwan Dass was regularized as a driver in the department even though he was illiterate and, therefore, on the ground of parity, the petitioner claimed that his services be regularized w.e.f. May, 2007 with all consequential benefits and seniority as he had completed more than 14 years of service under the respondents.
::: Downloaded on - 21/10/2019 20:25:01 :::HCHP 35. The respondents contested the writ petition on the ground of maintainability. It was admitted that .
the petitioner had worked as daily wage driver since 1999 to 2002. However, it was pleaded that since the petitioner did not work for 240 days in each calendar year, therefore, he was not entitled to regularization of his services. Moreover, the petitioner did not possess the requisite educational qualification.
6. As observed above, the learned Single Judge partly allowed the writ petition by directing the petitioner to file representation for regularization of his services before the respondents within one month, who in turn, were directed to consider the same and regularize the services of the petitioner against availability of regular vacancy of driver in the department keeping in view the recommendation of Selection Committee constituted by the Appointing Authority within a period of two months in accordance with law. The basis for such direction was a decision rendered by a coordinate Bench of this Court in CWP No. 7035 of 2012, titled Trilok Raj vs. State of H.P. ::: Downloaded on - 21/10/2019 20:25:01 :::HCHP 4 and others, decided on 19.11.2012 and the judgment of the Hon'ble Supreme Court in Bhagwati Prasad vs. .
Delhi State Mineral Development Corporation (1990) 1 SCC 361.
7. Aggrieved by the judgment passed by the learned Single Judge, the appellant has filed the instant appeal on the ground that since he had worked with the respondents for more than 14 years, his services were required to be regularized after completion of 8 years of service in view of the instructions issued by the Government, which were binding on the respondents.
The appellant further claimed parity with the case of one Bhagwan Dass, Driver, whose services had been regularized by the respondents in the year 2007.
8. We have heard learned counsel for the parties and have gone through the records of the case.
9. At the outset, it needs to be noticed that one Trilok Raj had filed CWP No. 7035 of 2012, wherein he had claimed the following substantive relief:
"(A). To issue writ of certiorari and mandamus, order in nature thereof, directing the respondents to regularize the services of ::: Downloaded on - 21/10/2019 20:25:01 :::HCHP 5 the petitioner w.e.f. 24.3.2004 with all consequential benefits and seniority as the .
petitioner has completed more than 16 years of services under the respondents."
10. Like the present case, the stand taken by the respondents therein was that the petitioner did not possess the requisite educational qualification of passing matriculation, as prescribed in the R & P Rules.
However, it was not in dispute that the petitioner therein had been working as driver ever since 1996 and as per the award of the Industrial Tribunal dated 25.7.2006, the petitioner was deemed to be in continuous service ever since after 2004 as he had otherwise been reinstated likewise in the present case.
11. This Court after placing reliance on the judgment of Bhagwati Prasad's case (supra) directed the respondents to consider the case of the petitioner therein on completion of required length of service ignoring the objection regarding the educational qualification. It would be relevant to reproduce the necessary observations as contained in paras 2 and 3 of the judgment, which reads as under:
::: Downloaded on - 21/10/2019 20:25:02 :::HCHP 6"2. The stand taken in the reply is that the petitioner does not possess the requisite .
educational qualification of passing matriculation, as prescribed in the R&P Rules. He has only passed the 7th standard. It is not in dispute that the petitioner has been working as driver ever since 1996. As per the Award of the Industrial Tribunal dated 25.7.2006, the petitioner is deemed to be in continuous service even after 2004 also, as he was otherwise reinstated. Be that as it may. The only objection for regularization is that the petitioner does not possess the required qualification as per the R&P Rules. The petitioner has been working as driver for more than a decade on daily waged basis.
Had he possessed the requisite qualification of passing matriculation, he would have been regularized. In Bhagwati Prasad vs. Delhi State Mineral Development Corporation reported in 1990 (I) SCC 361, the Apex Court has settled the principle that once a workman has been engaged for long in a post continuously on daily waged basis, at the time of regularization, it cannot be said that he cannot be regularized on the ground that he does not possess the requisite educational qualification, in case he is otherwise entitled for the same. In the reply, it is stated that the only objection is with regard to the educational qualification. In view of the law ::: Downloaded on - 21/10/2019 20:25:02 :::HCHP 7 laid down by the Apex Court, the writ petition is disposed of as follows.
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3. There will be a direction to the respondents to consider the case of the petitioner for regularization on completion of his required service, ignoring the objection regarding educational qualification. The needful shall be done within a period of two months from the date of production of a copy of this judgment along with a copy of the writ petition by the petitioner before the respondents. It is made clear that he shall be entitled to the consequential benefits.
However, the actual monetary benefits shall be limited to a period of three years prior to the date of filing of the writ petition, namely, 13.8.2012."
12. The case of the petitioner is no different to the one as that of Trilok Raj (supra). The appellant/ petitioner has been in continuous service of the respondents ever since the year 1999 till the time of his illegal retrenchment. The Industrial Tribunal has held the petitioner to be entitled to seniority, therefore, the petitioner is deemed to be in service w.e.f. 1999.
13. At this stage, it needs to be noticed that even though the objection raised by the respondents that the petitioner did not complete 240 days in a ::: Downloaded on - 21/10/2019 20:25:02 :::HCHP 8 calendar year prior to his retrenchment . However, the mode and manner in which the days have been .
calculated is contrary to law. 240 days had to be calculated backwards from the date of retrenchment, but the respondents have calculated the same in the following manner:
"Mandays chart of Sh. Bansi Ram, daily wage, driver w.e.f. 1999 to 2002.
Sr. No. Year Total Days 1. 1999 160 2. 2000 229 3. 2001 238 4. 2002 235 This calculation is obviously not in accordance with law.
14. Furthermore, it is not in dispute that the petitioner ever since the year 2007 had been continuously working with the respondents as is evident from Annexure R2 annexed with the reply of the respondents, the relevant extract which reads as under:
"Mandays chart of Sh. Bansi Ram, daily wage, driver w.e.f. 2007 to 31.08.2013.
Sr. No. Year Total Days ::: Downloaded on - 21/10/2019 20:25:02 :::HCHP 9 1. 2007 296 2. 2008 360 . 3. 2009 365 4. 2010 356 5. 2011 349 6. 2012 364 7. 2013 (upto 243 31.8.2013)
15. Thus, the instant case is squarely covered by the ratio of the judgment rendered by a coordinate Bench of this Court in Trilok Raj's case (supra) and therefore, was a binding precedent under Article 141 of the Constitution of India and was thus essentially required to be followed by the learned Single Judge.
16. Having failed to do so, the judgment passed by the learned Single Judge is not sustainable in the eyes of law and is accordingly setaside. The respondents are directed to consider the case of the petitioner for regularization of his services on account of completion of his required service from the year 1999 ignoring the objection regarding the educational qualification. The needful shall be done within a period of two months from the date of production of a copy of this judgment. It is further made clear that the ::: Downloaded on - 21/10/2019 20:25:02 :::HCHP 10 petitioner shall be entitled to the consequential benefits. However, the actual monetary benefits shall be .
limited to a period of three years prior to the date of filing of the writ petition, i.e. 11.7.2013.
17. The writ petition is disposed of, so also the pending applications, if any.
(Tarlok Singh Chauhan) Judge (Anoop Chitkara) 17 October, 2019.
th Judge (GR) ::: Downloaded on - 21/10/2019 20:25:02 :::HCHP