Himachal Pradesh High Court
Subhash Chand vs Hpsebl & Another on 9 January, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 5028 of 2013 Reserved on: 26.12.2016 Decided on: 09 .01.2017 __________________________________________________________________ .
Subhash Chand. .....Petitioner.
Versus
HPSEBL & another. ......Respondents.
__________________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. __________________________________________________________________ of For the petitioner: Mr. Lovneesh Kanwar, Advocate.
For the respondents: Mr. Vivek Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
rt The petitioner has maintained the present writ petition seeking following substantive reliefs:
"1. That the order/award dated 29.11.2010 passed by the Presiding Judge-cum-Labour Court contained in Annexure P-1 may kindly be modified by holding the petitioner entitled for seniority as has been done in other similar case.
2. That the respondents may kindly be directed to maintain the seniority of the petitioner from the date of his appointment after issuing the writ of mandamus."
2. Brief facts, as per the petitioner, giving rise to the present petition are that he was engaged by the respondents as Beldar on muster roll basis w.e.f. 15.10.1996. On 25.05.1997 his services were orally terminated without complying the mandatory 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:52:53 :::HCHP 2provisions of Section 25-F of Industrial disputes Act, 1947 (hereinafter referred to as 'the Act'). The petitioner filed a reference before the learned Labour Court, which was allowed on 29.11.2010 .
and he was ordered to be re-engaged forthwith, however, he was not granted seniority, continuity in service and back wages. As per the petitioner, the learned Labour Court while deciding his reference petition has adopted different yardstick and thus order of dated 29.11.2010 may be modified. The act of disengagement of the petitioner by the respondents was wrong, illegal, null and void, arbitrary, discriminatory and against the settled legal position, as rt no legal notice was served upon him before his oral termination.
Thus, the said termination is against the mandate of Section 25-F of the Act and the learned Labour Court has erred in not granting the petitioner seniority and back wages. The petitioner has further averred that other similarly situated persons were granted seniority and he came to know about this fact when he was not being regularized. Lastly, the petitioner prayed that the present writ petition may be allowed.
3. The respondents filed reply to the petition, wherein they have admitted that the petitioner was engaged as a casual worker, however, it is denied that the services of the petitioner were terminated by them. As per the respondents, the petitioner was engaged for a specific period and work w.e.f. 15.10.1996 for ::: Downloaded on - 15/04/2017 21:52:53 :::HCHP 3 providing 11KV H.T. Line from 63 KVA, S/Stn. Tullah and he remained deployed as such till completion of the scheme, i.e., 16.06.1997. As the services of the petitioner automatically ceased .
after completion of the scheme, there is no procedural irregularity as mentioned in the Act. It is further contended by the respondents, that the petitioner did not work from 25.06.1997 till his re-engagement consequent upon the award of the learned of Labour Court. As per the respondents, there is no violation of Section 25-F of the Act. The respondents, in order to comply the orders of the learned Labour Court, re-engaged the petitioner and rt he is working under them. Lastly, the respondents prayed that the present petition may be dismissed.
4. I have heard the learned counsel for the parties and have gone through the record in detail.
5. The learned counsel for the petitioner has argued that the petitioner was admittedly reinstated and thus he is also entitled for back wages and seniority in service. On the other hand, the learned counsel for the respondents has argued that the petitioner is not entitled for seniority and back wages. He has further argued that the petitioner was not even entitled for reinstatement. However, the respondents did not assail the reinstatement of the petitioner/award passed by the learned Labour Court.
::: Downloaded on - 15/04/2017 21:52:53 :::HCHP 46. Now the only question which involves in the present petition is whether the petitioner is entitled for seniority and back wages. The learned counsel for the petitioner has relied upon the .
judgment, dated 06.10.2016, of this Hon'ble Court rendered in CWP No. 4750 of 2013, titled as Devi Singh vs. HPSEBL through its Executive Director & another, wherein only seniority was granted. In the present case the learned counsel for of the petitioner could not demonstrate that the petitioner was not gainfully employed during the period he remained out of service and he has specifically averred that as per the judgment (supra), rt the petitioner may be granted seniority.
7. Taking into consideration the fact that the petitioner was reinstated in service, he is held entitled for seniority from the date his services were initially engaged by the respondents, i.e., 15.10.1996. The case of the petitioner otherwise is also with respect to seniority only, as the petitioner in para No. 10 of the petition has specifically averred that the action of the respondents is arbitrary as similarly situated persons were granted seniority and he has not yet been granted seniority. As per the petitioner, the order of the learned Labour Court is required to be modified to that extent only and he may be held entitled for seniority and continuity in service, as has been done in other cases of similarly situated persons. This submission of the petitioner has a force, ::: Downloaded on - 15/04/2017 21:52:53 :::HCHP 5 since the petitioner has been ordered to be reinstated by the learned Labour Court below, he is held entitled for seniority.
Therefore, the present writ petition is allowed and the award dated .
29.11.2010, passed by learned Labour Court-cum-Industrial Tribunal, Dharamshala, H.P., in Reference No. 42 of 2006, is modified to the extent that the petitioner shall also be entitled to seniority and continuity in service w.e.f. 15.10.1996, however, of without back wages.
8 Accordingly, the writ petition is allowed and disposed of. Pending application(s), if any, shall also stand(s) disposed of.
rt (Chander Bhusan Barowalia) Judge 9th January, 2017 (virender) ::: Downloaded on - 15/04/2017 21:52:53 :::HCHP