Himachal Pradesh High Court
Ran Singh vs The Himachal Pradesh on 4 October, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 4th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 6968 OF 2019
Between:
RAN SINGH,
S/O SH. PREM SINGH,
R/O V.P.O. HARABAG,
TEHSIL JOGINDERNAGAR,
DISTRICT MANDI,
HIMACHAL PRADESH.
....PETITIONER
(BY MR. VINOD CHAUHAN,
ADVOCATE)
AND
1. THE HIMACHAL PRADESH
STATE ELECTRICITY BOARD
LTD. THROUGH ITS EXECUTIVE
DIRECTOR PERSONNEL,
VIDYUT BHAWAN,
SHIMLA-171004.
2. SUPERINTENDING ENGINEER
(OP), CIRCLE, HPSEBL, KANGRA,
DISTRICT KANGRA, H.P.
3. CHIEF ENGINEER (OPERATION),
CENTRAL ZONE, HPSEBL,
MANDI,
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2
DISTRICT MANDI, HIMACHAL
.
PRADESH.
4. SR. EXECUTIVE ENGINEER,
ELECTRICAL DIVISION,
HPSEBL BAIJNATH,
DISTRICT KANGRA, H.P.
....RESPONDENTS
(BY MR. T.S. CHAUHAN,
ADVOCATE)
Whether approved for reporting?. Yes.
This petition coming on for hearing this day, the Court passed the following:
ORDER
By way of instant petition, which was earlier filed before the erstwhile HP State Administrative Tribunal and same after its abolishment, has been transferred to this Court for adjudication, petitioner has prayed for following main reliefs:
"(i) That the respondents Board may kindly be directed to give the work charge status/regularization to the applicant with all consequential benefits as Beldar with effect from 01.01.1997 with interest @ 9% per annum, when he completed his 8 years services with 240 days as per the policy of the State Government and as per ratio laid down by the Hon'ble High Court on 28-07-2010 in Rakesh Kumar case.::: Downloaded on - 31/01/2022 23:09:44 :::CIS 3
(ii). That the respondents may very kindly be directed to .
grant the pension to the applicant after considering his case for grant of work charge status with effect from 01.01.1997, including seniority, pay fixation etc.
2. Precisely, facts of the case, as emerge from the record are that petitioner was initially engaged as Beldar on daily wage basis on 25.9.1989 with the respondent-board, Electrical Division, Jogindernagar, District Kangra, H.P., where he remained posted upto 31.1.2004.
vide order dated 16.4.2012, respondent-board revised the services of the petitioner upto 16.4.2012 vide letter dated 29.5.2012. Vide memorandum Subsequently, No. 235063/MS/2012, (Annexure A-3), respondent-board offered the post of T/mate on work charge basis (personal post) to the petitioner in the pay scale of Rs. 5100-10680-1700GP from the date of his joining. Besides above, respondent-board also issued continuity service certificate in favour of the petitioner as is evident from Annexure A-4. Since despite petitioner's having put in more than 24 years in service, his services were not regularized, he has approached this court in the instant proceedings.
3. It has been alleged by the petitioner that though his juniors have been regularized by the respondent-department, his services are not being regularized. It has been further averred in the petition that as per policy of the respondent-department, daily wagers are entitled to get work ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 4 charge status after their having completed eight years service, but in the .
case of the petitioner, who has completed 240 days in each calendar year and has worked continuously for more than eight years, has not been granted the benefit as per policy of the regularization framed by the Government from time to time.
4. Mr. Vinod Chauhan, learned counsel for the petitioner, while inviting attention of this court to the judgment passed by this Court as well as Division Bench of this Court in CWP No. 2735 of 2010 (a/w connected matters) dated 28.7.2010, titled Rakesh Kumar v. State of HP and Ors., vehemently argued that after completion of eight years regular service, as daily wagers, respondent-department ought to have regularized the services of the petitioner, but in the case at hand, petitioner has not been granted the aforesaid benefit of regularization despite his having rendered more than 25 years in service, firstly, as daily wager and thereafter, as work charge employee.
5. Respondents in their reply have not denied that the petitioner was initially engaged on daily wage basis in the year, 1989 and thereafter, he was conferred work charge status in the year, 2012, but benefit of regularization, as has been claimed in the instant petition, has been sought to be denied on the ground that at the time of the passing of order ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 5 dated 16.4.2012 (Annexure A-1), whereby the petitioner was conferred work .
charge status as T/mate, he had executed two affidavits, stating therein that he will withdraw the court cases, if any, and will not claim any past benefit/claim.
6. Careful perusal of the aforesaid affidavits i.e. Annexure R1 and R-2 though suggests that in the year, 2012, at the time of conferment of work charge status as T/mate, petitioner had executed affidavits stating therein that he shall have no claim of arrears on the basis of equal pay for alleged equal work for the past service rendered as daily paid personnel and he shall forego arrears, if any, but same cannot be made basis by the department to refuse the relief of regularization claimed by the petitioner in light of the regularization policy, framed by the government from time to time. Since there is no denial on the part of the respondent that as per regularization policy in vogue in the department, many similar situate persons were granted work charge status and subsequently, their services were regularized, this Court is compelled to draw an inference that affidavits executed by the petitioner (Annexure R-1 and R-2) annexed with the petition, at the time of his being conferred work charge status, is a result of unfair labour practices adopted by the board. Firstly, department made the petitioner to wait for grant of work charge status for more than ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 6 23 years, whereas as per policy, he ought to have been conferred work .
charge status on his having completed eight years daily wage service with 240 days in each calendar years, but thereafter, department taking undue advantage of the plight of the petitioner, who had no option, made him to execute the affidavits as have taken note herein above, while granting him work charge status that too after his having rendered more than 23 years of service, which action on the part of the respondents cannot be said to be justifiable, rather compels this Court to draw inference that department has indulged in unfair labour practice.
7. Otherwise also, contents of the affidavits, as have been taken note herein above, nowhere suggest that the petitioner undertook before the department that he would not claim regularization, which is/was to be otherwise granted in terms of regularization policy framed by the Government of Himachal Pradesh as well as respondent board from time to time. It is not understood, that how after completion of eight years regular service, petitioner could be denied the benefit of regularization, on the pretext that he had executed affidavits to the effect that he will not claim any benefit of the past service.
8. Mr. T.S. Chauhan, learned counsel representing the respondents-Board, argued that policy of regularization framed by the ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 7 government is not applicable to the respondent-board, but same time, he .
was unable to dispute that petitioner is not entitled for regularization after his having completed eight years because as per own case of the respondent-board though petitioner had become eligible for regularization after his completed eight years service, but since he had undertaken by way of an affidavits that he shall not claim any benefit of past service, he is esttoped from claiming the benefit of regularization. Though this court is of the view that execution of the affidavit, if any, by the petitioner at the time of the grant of work charge status is of no relevance as far as prayer having been made by the petitioner for regularization after his having completed eight years service is concerned, but even otherwise, this Court cannot loose sight of the fact that affidavits, which are being relied upon heavily by the respondent department are the outcome of the coercion and undue influence exercised by the department, upon the petitioner at the time of grant of work charge status. Since petitioner had already rendered more than 23 years of service and he was not granted work charge status, he had no option, but to succumb to the demand of the department, whereby they without there being any authority made the petitioner to execute affidavits stating therein that he shall not claim any benefit of past service.
Affidavit executed by the petitioner is the result of adverse circumstances, ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 8 under which, the petitioner was made to execute an affidavit. Had he not .
executed the affidavit in the year, 2012, probably, department would not have granted him work charge status, to which, otherwise he had become eligible in the year, 2007. At the time of the execution of the affidavits, which are being relied upon heavily by the department, petitioner had no choice, but to execute the affidavit that too on the dotted line on a prescribed or standard form, hence, same cannot be allowed to be used by the department to deny the legitimate claim of the petitioner i.e. regularization, to which he had become eligible after a specific period as set out in the policy of the regularization framed by the State of Himachal Pradesh as well as respondent-board. Hon'ble Apex Court in case titled Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr and Central Inland Water Transport Corporation Ltd. and Anr. v. Tarun Kanti Sengupta and Anr, AIR 1986 SC 1571, has held that courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties, who are not equal in bargaining power. Relevant para of the aforesaid judgment is reproduced herein below:
"90. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to ::: Downloaded on - 31/01/2022 23:09:44 :::CIS 9 match the fashion of the day? Should all jurisprudential .
development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances."::: Downloaded on - 31/01/2022 23:09:44 :::CIS 10
9. Consequently, in view of the detailed discussion made herein .
above, present petition is allowed and respondent Board is directed to regularize the services of the petitioner from the date he had become eligible for regularization in terms of regularization policy framed by the Government of Himachal Pradesh as well as respondent-board. Since in the case at hand, order granting work charge status was passed in the year, 2012 (Annexure A-1), but yet petitioner waited for four years to file present petition, he is held entitled to consequential benefits only for the period of three years, prior to filing of the writ petition. In the aforesaid terms, present petition is disposed of alongwith pending applications, if any.
4th October, 2021 (Sandeep Sharma),
(manjit) Judge
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