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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Sh. Babu Ram, Son Of Sh. Munna Ram - Appellant
Vs.
The HPSEB Ltd. Through Its Executive Director (Pers.) With Headquarters At Shimla - Respondent
Civil Writ Petition No. 3421 Of 2019
Decided On : 18-10-2022
Industrial Dispute Act, 1947 - CCS (Pension) Rules, 1972 - Rule 17 - Services - Pension And Retiral Benefits – Qualifying service for entitlement of service benefits – Petitioner failed to lay any factual foundation to establish his claim. Petitioner has not placed on record his initial order of appointment or the document by virtue of which he was conferred work charge status w.e.f. 01.01.1998. [Para 9]
Finding of the Court:
Petitioner was granted work charge status on 01.01.1998. He did not raise any grievance at that stage. He retired in November, 2012 and kept silent thereafter without any justifiable cause. The petition has been filed at highly belated stage, hence the petition also suffers from vice of delay and laches.
Result: Petition dismissed.
ORDER :
By way of instant petition, petitioner has prayed for following substantive reliefs:
2. The facts as pleaded in the petition are that the petitioner was engaged as T-mate by the respondents in March, 1987. His services were brought on work charge/regular establishment w.e.f. 01.01.1998. Petitioner retired in November, 2012 and he is getting pension on the basis of 13 years of his service after 01.01.1998.
3. The petitioner claims that his services prior to 01.01.1998 are also liable to be counted as qualifying service for pension and other retiral benefits. As per petitioner, he was employed as temporary workman in the regular establishment of respondent No.1 prior to 1.1.1998 and as such, his entire service would qualify for the purpose of pension as per the CCS(Pension) Rules, 1972. The petitioner further claims that the respondents had prepared his service book and he was also subjected to medical examination before his appointment which means that petitioner was temporary workman.
4. The claim of the petitioner has been contested by respondents. It is averred that petitioner is estopped from filing the petition and is also not entitled for relief on account of delay and laches. On merits, it is submitted that the services of the petitioner rendered as daily wager cannot be counted towards pensionary benefits.
5. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
6. The petitioner has placed reliance upon the Standing Orders applicable to respondent No.1. Petitioner submits that since his services were utilized continuously from 1987 till 1997 with 240 days in each calendar year, his employment cannot be said to be casual. As per the petitioner he has worked as a temporary employee in regular establishment of respondent No.1 which gives him right to claim the period of service rendered by him before 01.01.1998 to be counted towards qualifying service for pension.
7. Clause 5 of the Standing Orders relied upon by the petitioner read as under:
(a) Regular establishment having temporary and permanent workmen.
(b) Workcharge establishment having work charge workmen.
(c) Casual establishment having Casual/ Temporary workmen.
(d) Apprentices.
Explanation: -
(a) The workmen (Temporary & Permanent) on regular establishment shall be governed by F.R.& S.R.
(b) The workmen in workcharge establishment shall also be governed by F.R. & S.R. but for the purpose of leave the provisions of these Standing Orders shall apply.
(c) A ‘Temporary Workman’ in casual establishment shall mean a workman who has been engaged for a work which is essentially of a temporary nature and likely to be finished within a limited period.
(ii) A ‘Casual workmen’ in Casual establishment is a workman whose employment is of a Casual nature.
(iii) A Casual Workman shall be said to be in continuous service for a period if he is, for that period, in un-interrupted service, including service which may be interrupted on account of reasons as indicated hereunder in the Note.
Where a Casual workman is not in continuous service within the meaning of above sub-para for a period of one year, he shall be deemed to be in continuous service for one year, if he, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually
A ‘Temporary Workman’ in casual establishment shall mean a workman who has been engaged for a work which is essentially of a temporary nature and likely to be finished within a limited period.
Services rendered by work-charged employees cannot be counted for the purposes of pension and quantum of pension.
Daily wage employees' service must be counted for pension eligibility, ensuring non-discriminatory treatment under retirement benefit regulations.
Services rendered as a daily wager should be counted towards qualifying service for pensionary benefits under the U.P. Palika (Centralized) Services Retirement Benefit Rules, 1981.
Continuous service of 40 years as a daily wager entitles the petitioner to pensionary benefits from the date of initial appointment, not from the date of regularization.
Temporary service prior to regularization must be counted for pension eligibility to ensure fairness and justice, as established by prevailing judicial principles.
Once work charge employment of the petitioner is held liable to be counted for the grant of pensionary benefits to him, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and t....
Point of Law : Grant of pensionary benefits, as a natural corollary, he will be governed under CCS Pension Rules, 1972 and Contributory Pension Scheme will not be applicable to him.
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