Himachal Pradesh High Court
Decided On: 19Th December vs State Of H.P. & Ors on 19 December, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:15078-DB
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.8060 of 2022
Decided on: 19th December, 2024
_________________________________________________________________
Bakshi Ram ….Petitioner
Versus
State of H.P. & Ors. …Respondents
_________________________________________________________________
Coram
Ms. Justice Jyotsna Rewal Dua
1 Whether approved for reporting?
_________________________________________________________________
For the petitioner: Mr. Rahul Mahajan, Advocate.
For the respondents: Mr. Sikandar Bhushan, Deputy
Advocate General.
Jyotsna Rewal Dua, Judge
Respondents regularized the services of the
petitioner from retrospective date on notional basis. Actual
monetary benefits were restricted to him from the date of
issuance of order of regularization. Feeling aggrieved,
petitioner has instituted this writ petition, seeking direction
to the respondents to pay him difference of arrears from the
date of retrospective regularization, till the date of issuance of
order of regularization.
1
Whether reporters of Local Papers may be allowed to see the judgment? yes
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2. Facts.
2(i) Petitioner was engaged as Beldar on daily wage
basis in the respondent Public Works Department in the year
1988. It is his case that from the date of his engagement as
daily waged Beldar till the year 2007, respondents gave him
fictional breaks and further that pursuant to the direction
issued by the Higher Authorities of Public Works Department
on 13.09.2007, he was issued proper muster-roll of
continued service w.e.f. 30.09.2007. Petitioner raised
industrial dispute that time to time termination of his service
w.e.f. the year 1999 was contrary to the provisions of
Industrial Disputes Act. Petitioner was one of the claimants
before the learned Labour Court-cum-Industrial Tribunal in
Reference No.63 of 2013, wherein following reference was to
be adjudicated: –
“Whether time to time termination of the services of
S/Sh. Ravinder Kumar S/O Sh. Raju Ram from the year
1998, Gurbachan Singh S/O Sh. Panjku Ram from
2000, Ranjeet Singh S/O Rikhi Ram from 1998, Raj
Kumar S/O Sh. Dhyan Singh from 1998, Suresh Kumar
S/O Sh. Hachhu Ram from year 2002, Bakshi Ram
S/O Sh. Joban Lal from 1999, Ram Singh S/O Sh.
Relu Ram from 1999 and Sarwan Kumar S/O Sh.
Nathu Ram from the year 1998 to the y ear, 2007 by the
i) The Executive Engineer, HPPWD Division Baijnath,
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Distt. Kangra, H.P. ii) The Executive Engineer, HPPWD
Division Balakrupi, Distt. Kangra, H.P. without
complying with the provisions of the Industrial Disputes
Act, 1947, as alleged by the workmen, is legal and
justified? If not, what amount of back wages, salary,
seniority, continuity in service, past service benefits and
compensation the above workers are entitled to from the
above employers?”
2(ii) Learned Labour Court-cum-Industrial Tribunal
allowed the reference petition on 30.07.2015, holding that
petitioner alongwith others (named in the award), were in
continuous and uninterrupted service with the respondents
from the date of their initial engagement. The breaks given to
them by the respondents were fictional in nature and would
not have any effect on their seniority and continuity in
service. Petitioner’s seniority was to be reckoned from the
date of his initial engagement. He was deemed to be in
continuous service with the respondents with all
consequential benefits, except back wages.
Respondents were also directed to consider the
case of regularization of the petitioner at the time when his
juniors had been regularized as per the State policy governing
daily wagers. Operative part of the award reads as under:-
“18. As sequel to my findings on foregoing issues, it is
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held that the petitioners namely Ravinder Kumar, Raj,
Kumar, Suresh Kumar, Bakshi Ram, Ram Singh and
Sarwan Kumar were in continuous uninterrupted
service with the respondents from the date of their
initial engagement, the breaks given by the
respondents being fictional in nature shall have no
effect on the seniority and continuity of service of the
petitioners and their seniority shall be reckoned from
their initial date of engagement. Accordingly, claim
petition is hereby allowed in part and reference is
accordingly answered in their favour. The petitioners
abovenamed shall thus be deemed to be in continuous
service of respondents with all consequential benefits
(excluding Gurbachan Singh s/o Shri Panjku Ram and
Ranjeet Singh s/o Rikhi Ram) except back wages who
shall, however, be considered for regularization by
respondents at the time when their juniors have been
regularized as per policy governing daily wagers as
framed by State Govt. and operative from time to time.
In peculiar circumstances of case, parties shall bear
their own costs.”
2(iii) Respondents implemented the above award and
also considered petitioner’s case for regularization of his
services. Office order was issued by the respondents on
30.07.2015, regularizing petitioner’s services. It is an
admitted case of the parties that notional date of
retrospective regularization of the petitioner was fixed as
01.10.2008 and accordingly, his pay had been fixed on
notional basis from the date of retrospective regularization i.e.
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01.10.2008. The actual benefits, however, were granted to the
petitioner from prospective effect i.e. 01.08.2015 on issuance
of the regularization order dated 30.07.2015.
2(iv) Feeling aggrieved against the non-grant of actual
monetary benefits from the retrospective date of
regularization of his services, petitioner preferred Original
Application (O.A) No. 286 of 2017, before the erstwhile H.P.
Administrative Tribunal (Tribunal). Learned Tribunal
disposed of the O.A on 13.07.2017 with direction to the
respondents to consider the case of the petitioner in
accordance with law laid down in Rakesh Kumar Vs. State
of H.P and others2.
Respondents in compliance to the aforesaid
direction ,considered the case of the petitioner and rejected
it on 18.11.2017.
2(v) The next segment of the case pertains to
another Reference No.9 of 2011, preferred by thirty one
persons including one Sh. Sansar Chand, wherein, following
reference had come up for adjudication before the learned
Labour Court-cum-Industrial Tribunal.:-
2
CWP No. 2735 of 2010 decided alongwith connected matters on 28.07.2010
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“Whether demand notices dated -12.8.2010 &
05.9.2010 served by the Pradhan, Him Shakti P. W.D.
(B.M.S.) Sub Division Jai Singhpur, Distt. Kangra, H.P.
before the Executive Engineer, HPPWD Division
Baijnath, Distt. Kangra, H.P. to consider the period of
fictional breaks given to 31 workmen as per
“Annexure-A” (Copy-enclosed) towards continuity in
their service from the date of their initial appointment
till September, 2007 when they were given work in
continuity and to regularise them alongwith seniority
in service is legal and justified? If yes, to what service
benefits, seniority and relief the above workmen as per
Annexure -A are entitled to from the concerned
employer? If not, what are its legal effects?”
The above reference was similar to the one in the
case of the present petitioner in Reference No. 62 of 2013.
Learned Tribunal answered Reference No.9 of 2011 (in case of
Sh. Sansar Chand and thirty others) in the similar manner
as answered in case of petitioner in Reference No. 62 of 2013.
Operative part of the award passed by the learned Labour
Court-cum-Industrial Tribunal in Reference No. 9 of 2011
reads as under:-
“17. In view of my findings on issue No.l above, the petition
succeeds in part and the some is partly allowed. The
breaks given from the year 2003 onwards to the 31
labourers represented by the petitioner shall be deemed
to have worked for 240 days without any break and the
fictional breaks given are held to be wrong, illegal and
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discriminatory, in view of the work given to Kundan Lal,
daily wager from the year 2003 onwards for more than
240 days a year. Therefore, the 31 labourers as per
Annexure A, shall be entitled to seniority and continuity
in service from the year 2003 onwards, except back
wages. These workers shall be considered for
regularization by the respondent as per the policy
governing the daily wagers, as framed by the State
Government and operative from time to time. In the
peculiar facts of the case, the parties shall bear their
own casts.”
The decision of the learned Labour Court-cum-
Industrial Tribunal in Reference No.9 of 201l was similar to
the decision rendered in the reference case filed by the
petitioner.
2(vi) Respondents set-down to implement the award
passed in Reference No. 9 of 2011. Sh.Sansar Chand and
other claimants were, inter-alia, regularized retrospectively,
but the actual monetary benefits were restricted to them
from the date of issuance of the regularization order. Feeling
aggrieved, Sh. Sansar Chand preferred O.A. No. 230 of 2017
before the erstwhile H.P. Administrative Tribunal. The O.A.
was allowed on 26.03.2018. Sh. Sansar Chand was held
entitled to actual arrears of pay/financial benefits w.e.f. the
date when his service was regularized on notional basis
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alongwith interest @ 9% per annum. Respondents-State
preferred CWP No. 182 of 2019, assailing the decision
rendered in O.A. No. 230 of 2017. While dismissing the writ
petition, Hon’ble Division Bench of this Court held as
under:-
“5. Having given our thoughtful consideration to the
submissions, we do not find any merit therein. We say
so for the reason that the respondents were
undisputedly reinstated in service by the Labour
Court-cum-Industrial Tribunal with continuity of
service, though part of back wages was denied to
them. Once the respondents were reinstated in service
with continuity of service, they shall be deemed to
have been serving uninterruptedly. It could not be
seriously disputed that had the respondents been in
service, but for their illegal retrenchment, their services
would have been regularized in the year 2012 itself. It
was only after their reinstatement pursuant to the
award passed in the year 2014 that their claim for
regularization was belatedly considered in the year
2015. Such delay is not attributable to the
respondents. Moreover. in case the consequential
financial benefits arising out of the order of
regularization of services are denied to the
respondents, it would lead to a conflict between the
order reinstating them in service with continuity of
service, especially in the light of the fact that such an
award of the Labour Court has already been accepted
by the Authorities.
6. As regard to the preliminary objection of limitation, we
do not find any merit therein. It is a matter of record
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that the respondents had immediately after passing of
the order of regularization in the year 2015,
approached the Tribunal within limitation and they
were asked to make representations to the competent
authority. They availed such remedy and their
representations were turned down in the year 2017
only, i.e., on 21.03.2017. If the period of limitation is
counted from the date post rejecting their claim, the
second Original Application filed by them was
admittedly within limitation.
7. Taking into consideration the aeration of the period for
which arrears of pay are required to be paid to the
respondents, who are Class-IV employees, we do not
deem it necessary to interfere with the order under
challenge. The petition is accordingly dismissed, so
also pending miscellaneous applications, if any.”
In the aforesaid decision, it was held that
petitioner therein (Sh. Sansar Chand) had been re-instated in
service by the learned Labour Court-cum-Industrial Tribunal
with continuity in service, though part of back wages was
denied to him. Once Sh. Sansar Chand had been re-instated
with continuity in service, he was deemed to be serving
uninterruptedly. Hence, it cannot be disputed that had Sh.
Sansar Chand been in service, but for his illegal
retrenchment, his service would have been regularized in the
year 2020 itself. It was only after his reinstatement, pursuant
to the award passed in the year 2014, his claim for
– 10 – 2024:HHC:15078-DB
regularization was belatedly considered in the year 2014.
Such delay cannot be attributed to the workman
Sh. Sansar Chand. Therefore, order of the Tribunal holding
Sh. Sansar Chand entitled for consequential financial
benefits arising out of order of regularization of his service
was held justified.
2(vii) Based upon the decision rendered in CWP
No. 182 of 2019, in case of Sh. Sansar Chand, present
petitioner preferred his representation dated 24.03.2021 to
the respondents seeking arrears/ consequential benefits from
the date of his retrospective regularization (01.12.2008) till
the date of issuance of the regularization order (31.07.2017)
on actual basis. Respondents rejected the case of the
petitioner on 17.06.2021. Hence, this writ petition has been
filed for grant of following substantive relief: –
“(a) The Hon’ble Court may kindly be pass the direction to
the respondents to pay the difference of arrears to the
petitioner w.e.f. 01.12.2008 to 31.7.2017 along with
12% interest per decision of this Hon’ble Court
rendered in CWP No. 182 of 2019, titled State of H.P.
& Others vs. Sansar Chand and other, decided on
25.2.2019.”
3. Learned Deputy Advocate General submits that
petitioner cannot be allowed benefits as have been granted to
– 11 – 2024:HHC:15078-DB
Sh. Sansar Chand since petitioner’s claim suffers from delay
and laches. Reliance in this regard is placed on the decision
rendered in Karan Singh Vs. State of H.P. and others 3.
4. Heard learned counsel for the parties and
considered the case file.
It has not been disputed that terms of the
reference in Reference No. 62 of 2013 (in case of the
petitioner) were the same as in Reference No. 9/2011 (in case
of thirty-one workmen including Sh. Sansar Chand). It is also
not in dispute that award passed in Reference No. 62 of 2013
on 30.07.2015 was similar to the one passed on 30.06.2014
in Reference No. 9 of 2011. Petitioners in both the awards
were held entitled to the similar benefits and similar
directions were issued to the respondents. The respondents
implemented both sets of the awards in case of the claimants
therein and issued regularization orders, but on notional
basis from retrospective dates and actual basis from the date
of issuance of regularization orders. petitioner’s
representation seeking actual benefits from the notional date
of regularization was turned down by the respondents.
Petitioner moved learned Administrative Tribunal. Pursuant
3
CWP No. 52 of 2020 decided on 15.11.2021
– 12 – 2024:HHC:15078-DB
to the directions issued by the Tribunal in O.A.(D) No. 286 of
2017, respondents considered and rejected the case of the
petitioner on 18.11.2017. In the meanwhile, Sh. Sansar
Chand, one of the claimants in Reference No. 9 of 2011, also
moved the Tribunal, seeking the same relief as prayed by the
present petitioner. Original Application (D) No. 230 of 2017
filed by Sh. Sansar Chand was allowed by the Tribunal on
26.03.2018. He was held entitled to actual benefits from the
date his services were regularized on notional basis. This
decision was affirmed by Hon’ble Division Bench of this Court
in CWP No. 182 of 2019.
Learned counsel for the petitioner pointing out to
paragraph-8 of the writ petition submitted that the
respondents had implemented the decision rendered in O.A.
(D) No. 230 of 2017 as affirmed on 25.02.2019 in CWP Nol.
182 of 2019, not only in case of Sh. Sansar Chand, but in
case of all other thirty workmen who were claimants in
Reference No. 9 of 2011 even though many out of the other
thirty workmen had not moved the Court against the order
passed by the respondents restricting the grant of actual
monetary benefits from the date of issuance of regularization
– 13 – 2024:HHC:15078-DB
orders. Petitioner is also similarly situated and, therefore, he
could not have been discriminated.
There is considerable force in the contention of the
learned counsel for the petitioner. The facts as noticed
above, makes it amply clear that that the references being
adjudicated by the learned Labour Court-cum-Industrial
Tribunal in different claim petitions filed by petitioner and
Sh. Sansar Chand had similar terms. The awards passed in
the two reference petitions were also on similar lines. The
subsequent action taken by the respondents regarding
regularization of claimants was also on same pattern i.e.
Sh. Sansar Chand & thirty others and the petitioner were
though granted benefits of regularization, but notionally from
retrospective dates and on actual basis from prospective
dates i.e. from the date of issuance of regularization orders.
Pursuant to the decision rendered in CWP No. 182 of 2019 in
case of Sh. Sansar Chand, he was released actual monetary
benefits from the notional date of regularization of his
services. Respondents implemented the above decision on
their own in case of all other thirty workmen in Reference
No.9 of 2011 as well, many of them have not moved the Court
– 14 – 2024:HHC:15078-DB
seeking actual benefits from the notional date of
regularization of their services. Petitioner, therefore, is also
entitled for the grant of actual monetary benefits from his
deemed date of regularization. Significantly, Hon’ble Division
Bench of this Court while deciding CWP No. 182 of 2019
(originating from the order passed by the learned Tribunal in
case of Sh. Sansar Chand) has held that once the workman
was reinstated in service with continuity of service, he is to
deemed to be serving uninterruptedly; Had he been in
service, but for his illegal retrenchment, his service would
have been regularized in time; The fault for delayed
consideration of workman’s case for regularization lies with
the respondents who reinstated the workman pursuant to the
award passed in his favour; Such delay is not attributable to
the workman; In such situation, if consequential benefits
arising out of order of regularization of services are denied to
the workman, it would lead to conflict between the order
reinstating him in service with continuity of service. The
above observations squarely apply to the facts of the instant
case as well. In view of above, petitioner’s claim of actual
monetary benefits cannot be said to be suffering from delay
– 15 – 2024:HHC:15078-DB
and laches. Petitioner had instituted OA (D) No.286 of 2017
for getting actual monetary benefits. In compliance to the
directions issued by the learned Tribunal on 13.07.2017 in
the Original Application, respondents considered the case of
the petitioner and rejected it on 18.11.20217. In the
meanwhile, learned Tribunal allowed a similar claim O.A. (D)
No. 230 of 2017, filed by Sh. Sansar Chand on 26.03.2018.
This decision remained under challenge before this Court till
25.02.2019. Respondents implemented the directions and
granted actual monetary benefits even to those workmen who
had not prayed for grant of actual benefits from the notional
date of regularization. Present Writ petition instituted on
19.01.2022, under the circumstances, cannot be said to be
suffering from delay and laches.
5. In view of above discussion, this writ petition is
allowed. Respondents are directed to release actual monetary
benefits to the petitioner from the date his services were
regularized on notional basis i.e. 01.012.2008 till the date of
issuance of regularization order. This exercise be carried out
within a period of four weeks from today.
– 16 – 2024:HHC:15078-DB
Pending miscellaneous application(s), if any, shall
also stand disposed of.
Jyotsna Rewal Dua
Judge
December 19, 2024
R.Atal
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