Himachal Pradesh High Court
Rakesh Kumar vs The Superintending Engineer & Ors on 19 July, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5029 of 2009.
.
Date of decision: 19th July, 2017.
Rakesh Kumar .......Petitioner.
Versus
The Superintending Engineer & Ors. ......Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Ms. Ranjana Parmar, Sr. Advocate with
Ms. Rashmi Parmar, Advocate.
For the Respondents : Mr. Neeraj K. Sharma, Dy. A.G.
Tarlok Singh Chauhan, Judge (Oral)
This present writ petition is directed against the award passed by the learned Industrial Tribunal-cum-Labour Court (for short 'Labour Court') on 30.10.2009 whereby the reference came to be answered against the petitioner.
2. It was the claim of the petitioner that though he was serving as a Surveyor, he had wrongly been given the muster roll of daily wages Beldar. The petitioner served a demand notice Whether the reporters of the local papers may be allowed to see the Judgment?yes.
::: Downloaded on - 20/07/2017 23:58:08 :::HCHP 2and thereafter the reference was sent by the appropriate government to the learned Labour Court for adjudication as .
under:
"Whether the demand raised by General Secretary, Bhartiya Mazdoor Sangh (HP) through their demand notice dated 1.11.2004 (Copy enclosed) from the (1) Superintending Engineer, 4th Circle, HPPWD, Winter Field Shimla-3; (2) Executive Engineer, Shimla Division No.II, HPPWD, Shimla-4 to promote Shri Rakesh Kumar s/o Shri L.N. Sharma daily wages beldar as Surveyor from the date of his appointment is proper and justified? If yes, what relief of service benefits the aggrieved workman is entitled to?"
3. The petitioner filed his statement of claim to which the respondents filed the reply. The learned Labour Court answered the reference against the petitioner constraining him to file the instant writ petition.
4. It is vehemently argued by Ms. Ranjana Parmar, Sr. Advocate, duly assisted by Ms. Rashmi Parmar, Advocate that the findings recorded by the learned Labour Court is absolutely perverse inasmuch as it has failed to take into consideration the pleadings as also the evidence led before it. Whereas State would support the award.
::: Downloaded on - 20/07/2017 23:58:08 :::HCHP 3I have gone through the records that were directed to be produced vide the earlier orders passed by this Court on .
3.5.2017 and thereafter on 14.6.2017.
5. Having gone through the records, I have no doubt in mind that the findings recorded by the learned Labour Court are absolutely perverse.
6. Petitioner in order to prove his case had summoned Shri Ramesh Chander Dheer, Additional Assistant Engineer, who appeared as PW2 and conceded that the petitioner had been working as a Surveyor since his engagement as a Beldar, but he was getting the salary of Beldar. He further deposed that the petitioner otherwise is a qualified Surveyor. It shall be apt to reproduce the statement of PW2 Shri Ramesh Chander Dheer, Additional Assistant Engineer:-
"Stated that I am posted as an Additional Assistant Engineer, Jatog Sub Division since 2006. I am well conversant with the facts of the case and I have brought the entire record of the case. The petitioner Rakesh Kumar was initially engaged as beldar on daily wages who was made regular in the year 2006. The petitioner has been working as Surveyor since his engagement as beldar but he is getting the salary of beldar. The petitioner is qualified Surveyor. The petitioner has been working under me since 2006."::: Downloaded on - 20/07/2017 23:58:08 :::HCHP 4
7. Apparently, there was no need for the petitioner to have got exhibited the documents from the record that were in .
his favour for the simple reason that the witness PW2 Shri Ramesh Chander Dheer, Additional Assistant Engineer clearly conceded to the claim of the petitioner that he had been working as a Surveyor ever since his engagement. The statement of this witness has been brushed aside by the learned Labour Court only on the ground that RW1 Shri D.P. Thakur, Assistant Engineer, HPPWD, Sub Division, Jatog, while appearing in the witness box had denied that the services of the petitioner were taken as a Surveyor.
8. Now, if one word to advert to the statement of RW1 Mr. D.P. Thakur, Assistant Engineer, it would be noticed that his deposition was not based on record as would be clear from his examination-in-chief, which reads thus:-
"Stated that I have been posted as an Assistant Engineer, HPPWD, Sub Division, Jatog since November, 2008. I am well conversant with the facts of the case and I have brought the record of the case. The petitioner was engaged as beldar on daily wages on March, 1997 and continued as such till December, 2006 and then the petitioner was made as regular beldar since December, 2006. The petitioner was never engaged as Surveyor by the department at any point of time nor he was paid the wages of Surveyor to the ::: Downloaded on - 20/07/2017 23:58:08 :::HCHP 5 petitioner. The claim of the petitioner is false as he never worked as Surveyor with the respondent."
.
9. It is rather surprising if not shocking as to how reliance could be placed upon the testimony of RW1 Mr. D.P. Thakur, Assistant Engineer over the testimony of PW2. No doubt, RW1 Mr. D.P. Thakur, Assistant Engineer, was a senior ranking officer to PW2- Mr. Ramesh Chander, Additional Assistant Engineer, but the testimony of PW2- Mr. Ramesh Chander, Additional Assistant Engineer was based entirely on the record which had been summoned by the petitioner. Since, this witness conceded to the claim of the petitioner, there was no occasion for the petitioner to have got exhibited the record.
10. That apart, even the record that had been summoned by the petitioner, which has been produced in the Court today, would reveal that the petitioner has been working as a Surveyor since the date of his engagement and therefore, findings recorded by the learned Labour Court are contrary to the record and deserve to be set aside.
11. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed. The award passed by the learned Industrial Tribunal-cum-Labour Court on ::: Downloaded on - 20/07/2017 23:58:08 :::HCHP 6 30.10.2009 is ordered to be quashed and set aside and resultantly the reference answered in favour of the petitioner.
.
12. The respondents are directed to regularize the services of the petitioner as a Surveyor with all consequential benefits and the petitioner is further held entitle to the wages of a Surveyor for the aforesaid period.
13. The petitioner is disposed of in the aforesaid terms, July 19, 2017 leaving the parties to bear their own costs.
r (Tarlok Singh Chauhan)
Judge
(Sanjeev)
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