Himachal Pradesh High Court
Kushal Chand vs State Of H.P & Others on 16 October, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWPOA No. 4686 of 2020 .
Reserved on : 1.10.2020
Decided on : 16.10.2020
Kushal Chand Petitioner.
Versus
State of H.P & others Respondents.
Coram:
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. Daleep Singh Kaisth, Advocate.
For the respondents: Mr. Ashwani Sharma, Additional Advocate General with Mr. J.S Guleria, Deputy Advocate General.
(through video conferencing).
Sureshwar Thakur, Judge The petitioner claims that since he has, within the domain, of, the pronouncement made by the Hon'ble Apex Court, in, a case titled, as, Mool Raj Upadhaya vs. State of H.P & others reported in 1994 Supp.(2) SCC 316, hence completed 10 years of rendition(s) of daily waged service(s), under, the respondents, (i) thereupon, the rejection of his claim, for conferment, of, work charge status upon him, is un-vindicable, and, hence he prays that 1 Whether reporters of the local papers may be allowed to see the judgment?
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Annexure A-1, be quashed, and, he be granted, the, espoused relief, .
by this Court.
2. This Court would countenance, the afore made contention, before this Court, by the petitioner, upon, his satisfying the relevant parameters, as, become enshrined in the afore judgment, (i) in as much as, in all the 10 years of services, under, the respondents, more precisely in each, of, the relevant calendar year(s), his completing 240 days of continuous service. However, a perusal of the reply discloses that he has not completed 240 days of continuous service, in the calendar year(s) appertaining to 1993, 1994, 1995 and 1997, and, hence the afore espoused contention, is, un-amenable, for acceptance, by this Court.
3. However, the learned counsel for the petitioner, submits that the afore non-completion(s) of continuous service, in as much, as, of 240 days of continuous service, in each of the afore calendar years, being a sequel, of, untenable fictional and artificial breaks being intentionally administered, by the respondent-employer, rather merely for making malafide disruption(s), in, the continuity, ::: Downloaded on - 17/10/2020 20:18:21 :::HCHP ...3...
of, his service. In making the afore made contention, the learned .
counsel for the petitioner, has made reliance, upon, a judgment rendered in a case titled, as, Mohd. Abdul kadir and another versus Director General of Police, Assam and others, reported in (2009) 6 SCC 611, wherein the afore administered fictional breaks become frowned, upon, by the Hon'ble Apex Court. However a deep reading of the afore judgment, does not carry forward, the espousal made before this Court, by the learned counsel for the petitioner, as, therein rather through a circular, the afore made breaks, become enjoined to be administered, vis-a-vis, the employees therein, and,
(a) thereupon perse, hence, a conclusion became sparked, vis-a-vis, the administered breaks, as, made rather causing untenable disruption(s), in, the continuity, of, service, of, the employees.
Contrarily hereat there, is, no circular placed, on, record by the learned counsel for the petitioner, hence, wherethrough the respondent concerned, has meted fictional breaks, for, therethrough his causing untenable disruption(s), in, the petitioner's hence rendering continuous service of 240 days, rather in each, of, the ::: Downloaded on - 17/10/2020 20:18:21 :::HCHP ...4...
relevant calendar year(s), precisely respectively, in, the year(s) .
1993, 1994, 1995, and, 1997. Consequently for, lack of placing on record, a, circular analogous to the one existing before the Hon'ble Apex Court, and, whereon(s) the afore judgment, became rendered, does obviously, beget an inference, qua, the hereat made breaks, in service neither becoming ingrained with any malafides reared by the respondents, to, therethrough, theirs ensuring disruption(s), being caused in the continuity, of, service of the petitioner, under, the respondents, merely for dis-empowering him to claim, the, benefit of Mool Raj Upadhaya case supra.
4. It also appears that obviously the afore breaks, are, to be construed to be on account, of, abstention from service, of, the petitioner, (i) unless demonstrated to arise, from, disruptions being caused, upon, continuity, of, service, despite availability, of, works to be performed, and, also despite there happenings, of, the petitioner offering to render them, hence respondent breaching the mandate of Section 25-G of, the Industrial Disputes Act, 1947 (ii) whereupon, any breaching(s) thereof, becoming agitate-able, only ::: Downloaded on - 17/10/2020 20:18:21 :::HCHP ...5...
upon the Industrial Tribunal concerned, being seized, with, an .
apposite reference, as, becomes made qua therewith, (iii) nor also when the afore breaks are condonable, through the extant petition, rather, are condonable through an award, being rendered by the Labour Court-cum-Industrial Tribunal concerned, upon the latter being beset, with the apposite reference, as, becomes made thereto, by the Tribunal Concerned, thereupon, all the afore(s) are not agitate-able before this Court.
5. In view of the above, there is no merit in the petition, and, the same is accordingly dismissed. All pending applications stand disposed of accordingly.
( Sureshwar Thakur), Judge.
16.X.2020 ( Chander Bhusan Barowalia ),
(priti) Judge.
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