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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Prem Raj – Petitioner
Versus
The Himachal Pradesh Tourism Development Corporation and Another – Respondents
C.W.P. No. 859 of 2021
Decided On : 05-12-2022
Industrial dispute - Employment and Service matter - Engaged as beldar on daily wage basis - Petitioner was engaged as beldar on daily wage basis by respondent No. 1 and worked as such till - With effect from designation of petitioner was changed to Junior Draughtsman - He continued to work in such capacity till , on which date services of petitioner were terminated - Respondent assailed aforesaid award before Court by way of CWP No. - A co-ordinate Bench of this Court upheld award passed by learned Tribunal while dismissing writ petition filed by respondent - Respondent further assailed judgment passed by learned Single Judge of this Court before a Division Bench by way of LPA No. 10 of 2019, which was also dismissed - Respondent No. 1 ordered engagement of petitioner as Junior Draughtsman on daily wage basis with immediate effect - It was specifically noted that seniority of petitioner, in terms of judgment passed by a Division Bench of Court, would be decided separately - Respondent No. 1 issued an office order whereby services of petitioner were ordered to be regularized w.e.f. on notional basis (without financial benefits) and on actual basis (with financial benefits) from date of his joining - Consequent to aforesaid orders, pay of petitioner was fixed vide office order dated - Contention of learned counsel for respondents that petitioner after accepting his re-engagement without reservation is not entitled to raise issue subsequently deserves to be rejected - Petitioner had no option but to join. Para 14
Finding of Court :
Merely because he had not reserved his right while joining, does not mean that he had given up his rights available to him in accordance with law - In view of the fact that petitioner is held to be entitled to actual financial benefits from the date of award and all other service benefits from petitioner has also become entitled to paid leave in accordance with service rules applicable in respondent No. 1-Corporation - In light of above discussion, petition is allowed - Office orders dated (Annexure P-5), (Annexure P-6) and order dated (Annexure P-9) are quashed and set-aside - Petitioner is held entitled to all service benefits on actual basis from and on monetary benefits on actual basis w.e.f. date of passing of award - Respondents are directed to re-fix salary of petitioner accordingly and pay entire arrears to petitioner within six weeks from date of passing of judgment - Respondents are further directed to credit leave of 313 days availed by petitioner to leave of kind due to him.
Result : Petition stands disposed of
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant petition, petitioner has prayed for following substantive reliefs:
(i) That the impugned orders dated 07.08.2019 (Annexure P-5), 28.09.2019 (Annexure P-6) and order dated 07.08.2020 (Annexure P-9) may kindly be quashed and set-aside.
(ii) That writ in the nature of mandamus may kindly be issued directing the respondents to grant wages/salary/leave kind due such as casual leaves, medical leave and earned leave to the petitioner w.e.f. 31.08.2010 with all consequential benefits in consequence to the award passed by the learned Labour Court on 31.08.2010 and further respondents may be directed to pass the fixation order w.e.f. 20.01.2009 with all consequential benefits including the arrear of salary with interest throughout.
2. The petitioner was engaged as beldar on daily wage basis by respondent No. 1 on 18.04.1997 and worked as such till 30.04.1998. With effect from 01.05.1998 the designation of the petitioner was changed to Junior Draughtsman. He continued to work in such capacity till 18.03.2000, on which date the services of the petitioner were terminated.
3. Petitioner raised an industrial dispute. The appropriate Government referred the dispute for adjudication of the Industrial Tribunal-cum-Labour Court, Shimla (for short “the Tribunal”). Learned Labour Court decided the reference in favour of the petitioner and passed the award dated 31.08.2010 in Reference No. 64 of 2005 in the following terms:
“As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and it is ordered that he (petitioner) be reinstated in service, with seniority and continuity but without back wages, from the date of his termination i.e. 8.3.2000. Consequently, the reference stands answered in favour of the petitioner and against the respondents. Let a copy of this award be sent to the appropriate Government for publication in official gazette. File, after completion be consigned to records.”
4. The upshot of the award clearly was that petitioner was to be reinstated and his reinstatement was to entail seniority and continuity in service, only back wages were denied to the petitioner.
5. The respondent assailed the aforesaid award before this Court by way of CWP No. 4441 of 2011. A co-ordinate Bench of this Court upheld the award passed by learned Tribunal while dismissing the writ petition filed by the respondent. The respondent further assailed the judgment passed by learned Single Judge of this Court before a Division Bench by way of LPA No. 10 of 2019, which was also dismissed on 11.03.2019.
6. On 16.05.2019, respondent No. 1 ordered the engagement of petitioner as Junior Draughtsman on daily wage basis with immediate effect. It was specifically noted that seniority of petitioner, in terms of the judgment passed by a Division Bench of this Court, would be decided separately. On 07.08.2019, respondent No. 1 issued an office order whereby the services of the petitioner were ordered to be regularized w.e.f. 17.01.2009 on notional basis (without financial benefits) and on actual basis (with financial benefits) from the date of his joining. Consequent to aforesaid orders, the pay of the petitioner was fixed vide office order dated 28.09.2019.
7. The petitioner had to avail leave w.e.f. 13.08.2019 to 20.06.2020 on account of serious ailment of his son which ultimately proved fatal. Vide Annexure P-9, office order dated 07.08.2020, respondent No. 1 accorded ex-post-facto sanction for leave of 313 days as extra-ordinary leave without pay.
8. The grievance raised by the petitioner by way of instant petition is that the order dated 07.08.20019 (Annexure P-5) whereby his services have been regularized retrospectively on notional basis w.e.f. 17.01.2009, is wrong, illegal and arbitrary. Vide award dated 31.08.2010, the petitioner had become entitled to continue in job from the date of his illegal retrenchment and such continuation was to have benefits of continuity and seniority in servic
SupremeToday
Point of Law : Merely because litigation, that too, at instance of respondents continued for considerable long period cannot be held to be a factor to disentitle petitioner from all actual benefits, ....
Point of Law : Merely because litigation, that too, at instance of respondents continued for considerable long period cannot be held to be a factor to disentitle petitioner from all actual benefits, ....
The main legal point established in the judgment is the entitlement of an employee to claim wages for the period between dismissal and reinstatement, as per the provisions of the Industrial Disputes ....
Implicit grant of continuity of service when not specifically denied by the Labour Court.
Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Di....
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