Himachal Pradesh High Court
Himachal Pradesh State Electricity ... vs Shri Chet Ram And Another on 1 November, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.: 9695 of 2012.
.
Decided on: 01.11.2017.
Himachal Pradesh State Electricity Board
Ltd. and another ....Petitioners.
Versus
Shri Chet Ram and another ...Respondent.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
For the petitioners : Mr. Satyen Vaidya, Senior Advocate.
For the respondents : None.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioners have prayed for setting aside of award passed by the Court of learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Dharamshala, in Reference No. 141/2006, dated 26.08.2011, vide which learned Labour Court has granted the following relief in favour of the workman therein i.e. the present respondent No.
1.
"For the foregoing reasons discussed hereinabove, the reference is allowed partly. It is held that the petitioner was entitled to be brought on work charge status w.e.f.::: Downloaded on - 10/11/2017 12:57:13 :::HCHP
1.1.1994 as per ratio of Gehar Singh's judgment discussed hereinabove supra, though his regularization was to be dependent upon the availability of post which .
was rightly done in the year 2001. As sequel thereto the petitioner shall be entitled to all consequential benefits arising thereto after being brought on work charge w.e.f.
1.1.1994. The reference is answered accordingly. A copy of this award be sent to the appropriate Govt. for publication in the official gazette and the file after due completion consigned to the record room."
2. As no one appeared on behalf of respondent No. 1 when the case was listed in the Court on 22.09.2017 and 04.10.2017, this Court in the interest of justice, issued Court notices to the said respondent for 26.10.2017. As per report of the registry, Court notice issued to respondent No. 1 stands served after service. As even thereafter no one has put in appearance on behalf of the said respondent, accordingly he is proceeded against ex parte.
3. I have heard Mr. Satyen Vaidya, learned Senior Counsel appearing for the petitioners who has taken me through the records of the case. The appropriate government made the following reference for the purpose of adjudication to the learned Labour Court.
"Whether the action of the Additional Superintending Engineer, HPSEB Division, Joginder Nagar, District ::: Downloaded on - 10/11/2017 12:57:13 :::HCHP Mandi, H.P. not to regularize the services of Shri Chet Ram S/o Shri Gouru Ram workman after completion of 10 years of continuous service w.e.f. 1989 is legal and .
justified? If not, what relief of service benefits the above aggrieved workman is entitled to?"
4. The case pleaded in the claim petition by the workman in brief was that he joined the respondent-Board as a beldar w.e.f. 3.12.1983 and his services stood regularized as T-Mate in the regular pay scale by the HPSEB to the category of work charge after completion of 13 years and 9 months w.e.f.
3.9.1997. By placing reliance on the judgment of the Hon'ble Supreme Court in case titled Mool Raj Upadhaya's vs State of Himachal Pradesh, it was submitted by the claimant that he was entitled for regularization as from when persons junior to him stood regularized on work charge status w.e.f. 1989 after completion of 10 years of service. The following reliefs were claimed in the claim petition.
"i) The Hon'ble Court determine the facts of the case and directed to respondent to regularize the services of applicant w.e.f. 1989, 1992, 01-01-94 and as per notification dated 11-07-95 in the regular pay scale as fixed by the HPSEB to its employees to the category of the work charge T-Mate Rs. 770-1350/- and revised w.e.f. 1.1.1996.::: Downloaded on - 10/11/2017 12:57:13 :::HCHP
ii) The Hon'ble Court again directed to respondent to pay the balance arrear of payments to the applicant from the due date of his regularization to till the date of .
his retirement as on 28-02-2002 with all allowances and consequential service benefits.
iii) The Hon'ble Court further directed to respondent to pay the litigation cost Rs. 5000/- in the interest of justice and justice be done.
iv) Any other relief may kindly be granted in favour of the applicant."
5. While denying the claim of the workman, in its response filed before the learned Labour Court, the stand taken by the respondent-Board was that the workman was initially engaged as a daily wage beldar w.e.f. 30.12.1983 and as per eligibility of the workman and availability of the post, he stood appointed as T-Mate on work charge and thereafter he was brought in regular cadre w.e.f. 1.2.2001. In the reply, it was also mentioned that the workman stood retired on attaining the age of superannuation on 28.2.2002. It was further mentioned in the reply that the ratio of judgment of the Hon'ble Supreme Court being relied upon by the workman was not applicable to the facts of the case and the workman in fact stood regularized as per his eligibility. It was denied that the workman actually worked under permanent establishment of the respondent-Board as temporary ::: Downloaded on - 10/11/2017 12:57:13 :::HCHP employee. It was mentioned in the reply that w.e.f. 30.12.1983 to 2.9.1997, he rendered services on daily wage basis and .
utilization of his services was against the casual nature of work.
While denying the contention of the workman that persons junior to him were either placed work charge or regularized before him, it was mentioned in the reply that as and when posts of T-Mate work charge were available/vacant with the respondent-Board, r the Board held open interviews and candidates were selected on merit in the interview so held. It was also mentioned in the reply that earlier the workman was not selected on account of his low merit and thus, it was denied that any person junior to him was appointed against the said post.
6. On the basis of pleadings of the parties, learned Labour Court framed the following issues.
! " "# $ %
%
7. The following findings were returned by the learned Tribunal on the issues so framed.
& ' ( ##
' ! ('
::: Downloaded on - 10/11/2017 12:57:13 :::HCHP
' )% * (+ ,
-
.
8. Vide award dated 26.8.2011, learned Labour Court while answering the reference in favour of the workman granted the following relief in favour of the workman.
"For the foregoing reasons discussed hereinabove, the reference is allowed partly. It is held that the petitioner was entitled to be brought on work charge status w.e.f. 1.1.1994 as per ratio of Gehar Singh's judgment discussed hereinabove supra, though his regularization was to be dependent upon the availability of post which was rightly done in the year 2001. As sequel thereto the petitioner shall be entitled to all consequential benefits arising thereto after being brought on work charge w.e.f. 1.1.1994. The reference is answered accordingly. A copy of this award be sent to the appropriate Govt. for publication in the official gazette and the file after due completion consigned to the record room."
9. The award so passed by the learned Labour Court stands assailed by way of this writ petition.
10. A perusal of the reference which was received by the learned Labour Court for the purposes of adjudication from the appropriate government demonstrates that the same was to the effect that as to whether action of the Officer of Joginder Nagar ::: Downloaded on - 10/11/2017 12:57:13 :::HCHP Division of HPSEB not to regularize the services of workman after completion of 10 years of continuous service w.e.f. 1989 is .
legal and justified and if not, what relief of service benefits the aggrieved workman was entitled to? Neither the averments made in the claim petition appear to be in sinc with the reference which was so made by the appropriate government to the learned Labour Court, nor the issues which were framed by the learned Labour Court are in harmony with the reference. I am referring to the above for the reason that learned Labour Court in exercise of its adjudicatory function while deciding a reference under Section 10 (1) of the Industrial Tribunal Act, 1947 has to answer the reference which is so made before it by the appropriate government and the scope of adjudication, in my considered view, cannot be beyond the reference.
11. Coming to the facts of the present case, the reference which stood so made by the appropriate government to the learned Labour Court stands quoted by me herein above. I find this reference not to have been answered appropriately by the learned Labour Court. Yes, the averments made in the claim petition so filed by the workman before the learned Labour Court are also not in sinc with the reference so made by the ::: Downloaded on - 10/11/2017 12:57:13 :::HCHP appropriate government to the learned Labour Court but then when learned Labour Court is called upon by the appropriate .
government to answer a reference, then reference which is so made by the appropriate government cannot be put on the back burner by the learned Labour Court and it cannot venture upon to decide a claim so filed by the workman in isolation or by ignoring the reference which is so made to it by the appropriate government. This is exactly what has been done in the present case. By doing so, in my considered view, the learned Labour Court exceeded its jurisdiction. Neither the issues framed by the learned Labour Court are in consonance with the reference which was so made for the purpose of adjudication before it by the appropriate government nor the findings returned by the learned Labour Court while answering the reference can be said to be in harmony with the reference which was to be answered by the learned Labour Court. Therefore, in my considered view, the impugned award is not sustainable in the eyes of law.
12. Accordingly, in view of above discussion, this writ petition is allowed and impugned award dated 26.8.2011, passed in Reference No. 141 of 2006 by the learned Labour Court, Dharmashala is quashed and set aside and the matter is ::: Downloaded on - 10/11/2017 12:57:13 :::HCHP remanded back to the learned Labour Court to decide the same afresh, strictly in consonance with reference which has been .
made by the appropriate government to the Labour Court to be answered.
The petition stands disposed of in the above terms, so also pending miscellaneous application(s), if any. No orders as to costs.
r (Ajay Mohan Goel)
Judge
November 01, 2017.
(narender)
::: Downloaded on - 10/11/2017 12:57:13 :::HCHP