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2011 Supreme(HP) 1164
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Rajinder Kumar…Petitioner
Versus
H.R.T.C. and another. …Respondents.
CWP (T) No. 12295of 2008
Decided on : 9.3.2011
For the petitioner:Mr. Manohar Lal Sharma, Advocate. (in all the petitions)
For the Respondents:Mr. H.S. Rawat, Advocate in all the petitions.
The main legal point established in the judgment is that past practice and the obligation of the corporation to behave like a model employer influenced the court's decision in favor of the petitioners.
Headnote:
Over Stay Allowance - Employment Dispute - CWP (T) No. 12295 - Section 12 of the Constitution of India, Article 12 of the Constitution of India, CWP No. 82 of 2005
Fact of the Case:
The petitioners were employees of a corporation in tribal areas and had overstayed beyond the normal tenure. They were not paid over stay allowance, which they claimed was a past practice. The corporation argued that the decision to grant over stay allowance was made after the petitioners had overstayed.
Finding of the Court:
The court found that the petitioners and similarly situated persons were entitled to over stay allowance based on past practice and could not be discriminated against based on a later decision by the corporation. The court also emphasized the corporation's obligation to behave like a model employer and mitigate the hardships faced by employees in tribal areas.
Issues: The main issue was whether the petitioners were entitled to over stay allowance based on past practice despite a later decision by the corporation.
Ratio Decidendi: The court held that the petitioners and similarly situated persons were entitled to over stay allowance based on past practice and that the corporation could not discriminate against them based on a later decision. The court also emphasized the corporation's obligation to behave like a model employer and mitigate the hardships faced by employees in tribal areas.
Final Decision: All the petitions were allowed, and the respondents were directed to pay and release the petitioners over stay allowance within a specified period.
Rajiv Sharma, Judge.
Since common questions of law and facts are involved in all these petitions, the same are taken up together for hearing and are being disposed of by a common judgment. However, in order to maintain the clarity, the facts of CWP (T) No. 12295 have been taken into consideration.
2. Petitioner was appointed as Store-Keeper in the respondent-corporation at Rekong Peo on 14.10.1997. He completed his normal tenure of two winters and three summers on 14.10.2000. However, he was transferred to Sarkaghat on 30.9.2005. He was not paid over stay allowance though he had made representation.
3. Petitioner was appointed as Driver in the respondent-corporation on 26.6.1997. He completed his normal tenure, i.e. two winters and three summers at Rekong Peo on 26.6.2000. He was transferred to Himachal Road Transport Corporation, Pathankot on 30.9.2005. He has not been paid over stay allowance.
4. Petitioner was appointed as Conductor at Rekong Peo in the month of May, 2000. He has completed his normal tenure, i.e. two winters and three summers at Rekong Peo in the month of May, 2003. He was transferred to Himachal Road Transport Corporation, Bilaspur. He has also not been paid over stay allowance.
5. Mr. Manohar Lal Sharma has strenuously argued that as per the ‘past practice’, respondent-corporation had been paying over stay allowance to the incumbents who had over stayed beyond the normal tenure in the tribal areas. According to him, his clients were entitled to over stay allowance to the extent of 10% of basic pay in the 4th year, 17.½% of basis pay in the 5th year, 25% of basic pay in the th year and 35% of the basic pay in the 7th year, subject o minimum of Rs. 50/- and maximum of Rs. 500/- in all cases.
6. Mr. H.S. Rawat has vehemently argued that the respondent-corporation for the first time has taken a decision to grant the over stay allowance on 28.9.2005.
7. I have heard the learned counsel for the parties and have perused the pleadings carefully.
8. It is not in dispute that the normal tenure in the tribal areas is two winters and three summers. Petitioners had over stayed after completion of normal tenure of two winters and three summers.
9. Mr. Manohar Lal Sharma has drawn the attention of the Court to Annexures A-4, A-5, A-6 and A-7 whereby similarly situate persons have been paid over stay allowance. Respondent-corporation was directed to file supplementary affidavit in CWP (T) No. 12296/2008 under what provisions of law over stay allowance had been paid to the incumbents, as per Annexures A-4 to A-7. Respondent-corporation has not filed any supplementary affidavit. A bare perusal of Annexures A-4 to A-7 makes it abundantly clear that the incumbent who had over stayed after completion of normal tenure of two winters and three summers have been paid over stay allowance on 19.5.1986, 23.8.1996, 19.9.1996 and 25.3.1997. Petitioners are also similarly situate vis-à-vis those persons, who had been paid over stay allowance. Respondent-corporation cannot be permitted to treat equals as unequals.
10. Mr. H.S. Rawat has strenuously argued that the decision to pay over stay allowance has only been taken on 28.9.2005. According to him, only the persons, who have overstayed after 28.9.2005 will be entitled to over stay allowance. All the employees, who have over stayed their normal tenure, constitute homogenous class. They cannot be discriminated against only on the basis of cut-off date, i.e. 28.9.2005.
11. The matter is required to be considered from another angle. Respondent-corporation had been paying over stay allowance to its employees, who were posted in tribal area and had completed their normal tenure. This practice has been consistently followed, as is evident, as per Annexures A-4 to A-7. Petitioner are also entitled to get the over stay allowance, on the basis of ‘past practice’. The practice adopted by the respondent-corporation has to be applied uniformly. There cannot be pick and choose while granti
