jkti=] fgekpy izns'k

fgekpy izns'k jkT; 'kklu }kjk izdkf'kr

f”keyk] ohjokj] 23 tuojh] 2014@3 ek?k] 1935

fgekpy izns'k ljdkj

HIGHER EDUCATION DEPARTMENT

ORDER

Shimla-171002, the 20th January, 2014

No.EDN-A-Kha(15)13/2010-L.—WHEREREAS a charge-sheet was issued against Mrs.

Neha Naresh Mahajan, Lecturer in Psychology, Government College Dharamshala (Distt. Kangra)

under Rule 14 of the CCS (CCA) Rules, 1965 vide this department Memorandum of even no. dated

14-3-2013. The Charges framed against her were as under:—

“That the said Miss Neha Naresh Mahajan, Lecturer in Psychology, Govt. College

Dharamshala, Distt. Kangra, H.P. is willfully absent from her duties w.e.f. 19-01-2004 to

date, which is very unbecoming and tantamount to misconduct and violation of Rule 3 (1) i

& iii of CCS (conduct) Rules, 1964 in general and F.R.17-A in particular.”

229&jkti=@2014&23&1&2014 ¼5895½

5896

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

AND WHEREAS Mrs. Neha Naresh Mahajan, Lecturer in Psychology, Government

College Dharamshala (Distt. Kangra) did not submit written statement of her defense and vide

orders of even no. dated 8-4-2013, Mr. Ajay Awasthy, Sr. Asstt. Government College of Teacher

Education, Dharamshala was appointed as Presenting Officer and Mr. Kuldeep Banta, Principal,

Government College Shahpur, Distt. Kangra was appointed as Inquiry Officer to hold inquiry

against her.

AND WHEREAS, vide letter EDN/GC/Inquiry/2013-2092 dated 4th Sep. 2013 has

submitted that the Charged Officer Mrs. Neha Naresh Mahajan, neither appeared in person during

any hearings nor appointed any one as her defense assistant to represent her case. Even the

intimation letters for appearing before the inquiry officer were received back as undelivered with

the remarks “LEFT INDIA”. Accordingly, the final inquiry report has been submitted by the

Inquiry Officer with the conclusion that the Charged Officer has failed to maintain the devotion to

duty and is thus guilty of violating Rules-3(1)(i) & (iii) of CCS (Conduct) Rules, 1964 in General

and F.R. 17-A in particular.

AND WHEREAS, the charged officer was given one more opportunity through

Notice published in various newspapers i.e. Dainik Bhaskar dated 23-11-2013, Hindustan Times,

Dainik Savera Times, Himachal Dastak with the direction to appear before the Principal Secretary

(Hr. Edu.) to the Government of Himachal Pradesh, H.P. Secretariat, Shimla-171002 on 29th

November 2013 11.00 AM in his Office Chamber alongwith her written statement of defence or

submit her written statement by post within 15 days from the date of publication of this notice

failing which ex-parte decision will be taken in the matter, but the charged officer did not appear on

the scheduled date and time before the authority not submitted her written statement of defence.

AND WHEREAS, the undersigned has carefully gone through the charges framed

against the officer, findings thereon given by the Inquiring Authority, all other records pertaining to

this case and non-cooperation behavior of the said charged officer and found that the charged

officer remained willfully absent from duty w.e.f. 19-1-2004 till date. The Charged officer was

given many opportunities in her defence but she did not avail the same and compelled the

undersigned to take ex-parte decision.

AND WHEREAS, keeping in view the facts and circumstances of the case as

discussed above and after careful consideration of the whole matter, the undersigned does not find

any reason to disagree with the findings given by the Inquiry Officer and the report of inquiry is

fully agreed to and accepted accordingly. I hold that it has been proved beyond reasonable doubt

that Smt. Neha Naresh Mahajan, Lecturer in Psychology, Government College Dharamshala (Distt.

Kangra) has remained willfully absent w.e.f. 19-1-2004 to till date, which amounts to conduct

unbecoming of a Government servant and violation of the provisions of the CCS (Conduct) Rules,

1964.

NOW, THEREFORE, the undersigned, in exercise of the powers vested under

Rules-15 read with Rule-11 of the Central Civil Services (Classification, Control and Appeal)

Rules, 1965 hereby impose the penalty of “Removal from Service” on Smt. Neha Naresh Mahajan,

Lecturer in Psychology, Government College Dharamshala (Distt. Kangra) H.P., with immediate

effect.

R. D. DHIMAN,

Principal Secretary (Hr.Edu.) to the

Government of Himachal Pradesh.

Smt. Neha Naresh Mahajan,

Lecturer in Psychology,

Swaran Sadan Mission Road

Garden Colony ADJ Ranika Mandir

Pathankot-145001

5897

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

THE HIMACHAL PRADESH ELECTRICITY REGULATORY COMMISSION, SHIMLA

NOTIFICATION

Shimla, the 21st January, 2014

No. HPERC(IT)(1)-1. WHEREAS the Himachal Pradesh Electricity Regulatory

Commission has framed the Himachal Pradesh Electricity Ombudsman (Terms and Conditions of

Service of Officers and Employees) Regulations, 2004 and the nature of service rules, especially

the pay scales required frequent amendments and the process for amendment in regulations, being

very intricate and time consuming, cannot be frequently resorted to.

AND WHEREAS in pursuance to the provisions contained in sub-regulation(3) of

regulation 31 of the Himachal Pradesh Electricity Regulatory Commission (Consumer Grievances

Redressal Forum and Ombudsman) Regulations, 2013, the Himachal Pradesh Electricity

Regulatory Commission has made the Himachal Pradesh Electricity Ombudsman (Terms and

Conditions of Employees) Order, 2014 and the provisions contained in the Himachal Pradesh

Electricity Ombudsman (Terms and Conditions of Officers and Employees) Regulations, 2004 have

become redundant;

NOW, THEREFORE, the Himachal Pradesh Electricity Regulatory Commission, in

exercise of the powers vested under sub-section (1) of section 181 of the Electricity Act, 2003 (36

of 2003), read with section 21 of the General Clauses Act, 1897 (10 of 1897), hereby repeals the

Himachal Pradesh Electricity Ombudsman (Terms and Conditions of Service of Officers and

Employees) Regulations, 2004.

By the Order of the Commission,

Sd/-

Secretary.

____________

THE HIMACHAL PRADESH ELECTRICITY REGULATORY COMMISSION, SHIMLA

NOTIFICATION

Shimla, the 21st January, 2014

No. HPERC(IT)(1)-1.—In exercise of the powers conferred by sub-regulation (3) of

regulation 31 of the Himachal Pradesh Electricity Regulatory Commission (Consumer Grievances

Redressal Forum and Ombudsman) Regulations, 2013 and all other powers enabling it in this

behalf the Himachal Pradesh Electricity Regulatory Commission hereby makes the following order

to determine the terms and conditions for appointment of the staff to be posted with the Electricity

Ombudsman, namely:—

Short title and Commencement.—(1) This order may be called the Himachal

Pradesh Electricity Ombudsman (Terms and Conditions of Service of Employees) Order, 2014.

(2)

This order shall come into force on the date of its publication in the Rajpatra,

Himachal Pradesh.

Staff Strength.—(1) The categories of the employees of the Secretariat/office of the

Electricity Ombudsman and their strength shall be as under:—

5898

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

Name of the post

Staff strength

Private Secretary

Senior Assistant

Driver

Office Attendant

Provided that the Commission may review the staff strength in consultation with Electricity

Ombudsman from time to time.

Terms and Conditions of Appointments of Staff.—(1) The posts referred to in

para 2 shall be the posts on the establishment of the Distribution Licensee i.e. HPSEB Ltd. and

shall be filled up by Distribution Licensee by posting persons from its establishment.

(2)

The Distribution Licensee, in the event of non availability or on administrative

grounds, may post persons in any other grade in the same category against the post of Private

Secretary, Senior Assistant and Office Attendant.

Explanation.—Against the post of Private Secretary a person in the grade of Senior Private

Secretary, Additional Private Secretary, Personal Assistant etc. may be posted. Similarly

against the post of Office Attendant, a person holding the post of Peon, Jamadar, Havildar

or any other Class-IV grade may be posted.

(3)

The employees of Distribution Licensee, while posted in the office of Electricity

Ombudsman shall continue to draw salary, allowances and all other facilities as are available to

them under the Distribution Licensee i.e. HPSEB Ltd.

(4)

Where the Distribution Licensee is unable to deploy such employee(s), the

Distribution Licensee may either itself outsource certain functions or authorise the Electricity

Ombudsman to outsource certain functions on the terms and conditions being followed by the

Distribution Licensee for outsourcing the similar functions.

Secretary.—The Electricity Ombudsman shall designate any one of the person

holding the post of Private Secretary or Senior Assistant to function as the Secretary of the office of

the Electricity Ombudsman.

5. Applicability of CCA and Conduct Rules.—Electricity Ombudsman will be the

Controlling Officer of the employees. The provisions of the Central Civil Services Conduct Rules,

1964 and Central Civil Services (Classification, Control and Appeal) Rules, 1965 and other rules

and service conditions as applicable to the employees of the Government of Himachal Pradesh and

are made applicable, from time to time to its employees by the Distribution Licensee i.e. the State

Electricity Board, shall be applicable to the employees of the office of the Electricity Ombudsman.

Transitional provisions.—Notwithstanding anything to the contrary contained in

this order, the employees of the office of the Electricity Ombudsman, working immediately prior to

the issuance of this order, shall continue to discharge duties and perform functions as such

employees and be deemed to be the employees deployed by the Distribution Licensee till the

period, for which they had been appointed, is expired.

Power to remove difficulties.—The Commission may by order make such

provisions or give such directions, not inconsistent with the provisions of this order as it may deem

5899

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

necessary for the removal of any difficulty which may arise in giving effect to the provisions of this

order.

By the Order of the Commission,

Sd/-

Secretary.

__________

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&&&&&&&&&

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2 , the 1^st January, 2014

No: Sharm (A) 7-1/2005 (Awards) L-D/Shala.—In exercise of the powers vested under

section 17(1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to

order the publication of awards of the following cases announced by the Presiding Officer, Labour

Court D/Shala on the website of the Department of Labour & Employment of the Government of

Himachal Pradesh.

Sr.

No.

Case No.

Title of the Case

Date of Award

334/2012

S/Shri Mansa Devi

VS E.E. HPPWD, Joginder Nagar.

07-11-2013

351/2012

Ramesh chand

V/s

-do-

348/2012

Baini Chand

V/s

-do-

5901

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

352/2012

Sohan Singh

V/s

-do-

371/2012

Gian Chand

V/s

-do-

345/2012

Achhar Singh

V/s

-do-

385/2012

Joginder Singh

V/s

-do-

326/2012

Sawarna Devi

V/s

-do-

349/2012

Mahajan Ram

V/s

-do-

10.

331/2012

Bhajni Devi

V/s

-do-

11.

376/2012

Dhani Ram

V/s

-do-

12.

72/2013

Santosh

V/s

-do-

12-11-2013

13.

113/2013

Secy. H.P. Nirman V/s management M/s IKKU Power

13-11-2013

14.

262/2012

Pawan Kumar V/s E.E. HPPWD, Ghumarwin

13-11-2013

15.

264/2012

Roshan Lal

V/s

-do-

13-11-2013

16.

219/2012

Kamal Dev

V/s President Truck op-Society

13-11-2013

17.

207/2012

Mohan Lal

V/s D.F.O Chamba.

13-11-2013

18.

179/2012

Govind Ram

V/s E.E. I&PH Padhar

13-11-2013

19.

180/2012

Chander Kant

V/s

-do-

13-11-2013

20.

182/2012

Prakash Chand

V/S

-do-

13-11-2013

21.

185/2012

Partap Chand

V/s

-do-

13-11-2013

22.

189/2012

Krishan Singh

V/s

-do-

13-11-2013

23.

33/2013

Bhag Singh

V/s E.E. HPPWD Dharampur

14-11-2013

24.

21/2013

Pawan Kumar

V/s

-do-

25.

32/2013

Misroo Ram

V/s

-do-

26.

23/2013

Vijay Kumar

V/s

-do-

27.

22/2013

Vivek Kumar

V/s

-do-

28.

39/2013

Gunanand

V/s D.F.O. Suket

16-11-2013

29.

223/2012

Jagdish Chand

V/s D.F.O Joginder Nagar

18-11-2013

30.

224/2012

Subhkaram

V/s

-do-

18-11-2013

31.

225/2012

Gulab Singh

V/s

-do-

18-11-2013

32.

120/2007

Anita Kumari

V/s E.E.HPSEB, Killar

19-11-2013

33.

315/2012

Ghanshyam

V/s D.F.O. Sunder Nagar.

28-11-2013

34.

15/2013

Pawneshwari

V/s Dy. Dir. Animal Husbandary.

28-11-2013

By order,

R. D. DHIMAN,

Pr. Secretary (Labour & Employment).

____________

IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No.

308/2012

Date of Institution

09.08.2012

Date of Decision

01.10.2013

Shri Ramesh Chand s/o Shri Dhani Ram, r/o Village Gwal Tikkar, P.O. Kandgwal Tikkar,

Tehsil Palampur, Distt. Kangra, H.P.

.. Petitioner.

Versus

The Executive Engineer, HPPWD Division Baijnath, District Kangra, H.P. ..Respondent.

5902

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

Reference under Section 10 (1) of the Industrial Disputes Act, 1947

For the Petitioner

Sh. N.L. Kaundal, AR

Sh. Vijay Kaundal, Adv.

For the Respondent :

Sh. Sanjeev Katoch, Dy. D.A.

AWARD

The below given reference has been received from theappropriate Government for

adjudication:

“Whether termination of the services of Sh. Ramesh Chand S/O Sh. Dhani Ram, Village-

Gwal Tikkar, P.O. Kandgwal Tikkar, Tehsil Palampur, Distt. Kangra, H.P. by the Executive

Engineer, HPPWD Division Baijnath, Distt. Kangra, from time to time during 1999 to 2007,

without complying with the provisions of the Industrial Disputes Act, 1947 is legal and

justified? If not, what amount of back wages, seniority, past service benefits and

compensation the above worker is entitled to from the above employer?”

The case of the petitioner (as set out in the statement of claim/demand) is that his

services were engaged as a daily wager on muster roll basis by the respondent on 16.05.1999. No

appointment letter/order was issued in his name by the respondent/department. From the date of his

initial engagement upto September, 2007, muster rolls for 15 days in a month were issued in his

name by the respondent. He was not provided the work and given the artificial break for 15 to 16

days. Sometimes the muster roll for the whole month was issued in his (petitioner’s) favour and on

the expiry of the said month, his services were terminated by the respondent without any written

order. The breaks were given by the respondent from time to time so that he does not complete 240

days of work for the purpose of the regularization of his services as envisaged under Section 25-B

of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short). At the time of his

disengagement after every one month, works and funds were available with the respondent/

department. The persons junior to him (petitioner) were retained in service by the respondent and

they worked continuously. The names of the juniors are Shri Lakhwinder Singh and Smt. Kanta

Devi etc. His (petitioner’s) seniority was ignored by the respondent and the muster rolls were not

issued in his name continuously by the respondent/department. During the period of his

disengagement, he was not gainfully employed. The services of the persons junior to him, who

were not given the intentional breaks, have already been regularized by the respondent after

completion of eight years of service. He (petitioner) is also entitled to the regularization of his

services in the regular pay scale from the date of the regularization of the services of his juniors

alongwith the consequential service benefits. A similar case pertaining to the same Division

instituted by the workman Shri Suresh Kumar bearing Reference No. 23/2010 has already been

decided in favour of the labourer by this Court per Award dated 28.11.2011. It was held by this

Court that the breaks in service given by the respondent to Shri Suresh Kumar were fictional in

nature and the same will have no effect on his seniority and continuity in service. It was also

ordered by this Court that the seniority of Shri Suresh Kumar shall be reckoned from the date of his

initial appointment. The break period is required to be counted as continuous service. The

respondent indulged in unfair labour practice as well as contravened the provisions of Sections

25-F and 25-G of the Act. Demand notice dated 10.6.2010 was served upon the respondent by him

(petitioner), but in vain.

As such, as is apparent from the prayer clause of the petition/statement of claim, the

petitioner has claimed the following relief(s) in this case:—

5903

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

“i) The Hon’ble Court may kindly be set aside the illegal break period of applicant from

year 1999 to 2007 and directed to respondent to condone the breaks period in continuity of

service of applicant.

ii) The Hon’ble Court may kindly be again directed to respondent to pay the back wages of

breaks period along with interest @ 12% per annum.

iii) The Hon’ble Court further directed to respondent to consider the case of applicant for

regularization as per the seniority of applicant after completion of 8 years or from the date

of his junior have been regularized in the regular pay scale Rs.4900-10680/- + grade pay

and usual allowances as applicable to similar situated employees of the state government

from time to time and also pay the arrears to the applicant from the date of his

regularization to onwards.

iv) Any other relief the Hon’ble Court deems fit may kindly be granted in the favour of

applicant and against the respondent in the interest of justice and justice be done”.

On notice, the respondent appeared. He filed detailed reply controverting the

averments made in the petition/statement of claim. Preliminary objections have been taken to the

effect that the claim petition is not maintainable in the present form since no legal or fundamental

right of the petitioner has been infringed. The State of Himachal Pradesh and the Executive

Engineer, HPPWD, National Highway Division, Joginder Nagar are necessary parties to the

petition. They have not been joined as parties/respondents because of which the petition is bad for

non-joinder of the necessary parties. The petition is hit by the vice of delay and laches. The

petitioner is estopped from filing the claim petition by his act and conduct.

On merits, it has been owned that the employer employee relationship exists between the

parties i.e. the petitioner and the respondent/PWD Department. However, it has been pleaded that

the services of the petitioner were initially engaged in the year 1999 i.e. on 15.4.1999 by the

Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. On account of the

surplus labour in the National Highway Division, the petitioner was transferred to his

(respondent’s) office in the month of November, 2004. Since then, the petitioner is working under

him (respondent). No artificial/fictional breaks were provided to the petitioner at any point of time.

Actually, the petitioner was an intermittent worker. He used to report for duty as per his

convenience. As and when he came present, muster rolls for the whole month were issued in his

favour. Shri Lakhwinder Singh etc. are senior to the petitioner. Moreover, from the very beginning

they are serving under him (respondent). No dispute regarding the intentional breaks, if any, was

raised by the petitioner at the relevant time. With the passage of time, the industrial dispute has

become stale and faded away. He (respondent) did not indulge in any unfair labour practice. No

provision of the Act has been violated. He had no intention to deprive the petitioner from working

in continuity. As and when he (petitioner) reported for duty his services were duly engaged. The

facts of Reference No. 23/2010 are/were different than the instant case. The Award dated

28.11.2011 cannot be used as a precedent. The petitioner is not entitled to any relief. The petition is

meritless.

In these circumstances, the respondent prays that the petition in hand be dismissed.

In the rejoinder, the petitioner has reiterated the contents of the petition/statement of

claim and refuted the objections put forth by the respondent. He (petitioner) has not been given the

breaks in service by the respondent w.e.f. 01.1.2008. He is working continuously from that date. In

Reference No. 110/2006 decided on 02.11.2010 titled as Him Shakti PWD Karamchari Sangh v/s

Executive Engineer, HPPWD Division (B&R), Joginder Nagar, it has already been held by this

5904

jkti=] fgekpy izns'k] 23 tuojh] 2014@3 ek?k] 1935

Court that the State of Himachal Pradesh or the Executive Engineer, HPPWD, National Highway

Division, Joginder Nagar are not necessary parties to the lis.

Per order dated 04.01.2013, following issues were struck:

Whether the termination of services of the petitioner by the respondent from time to

time during the years 1999 to 2007 is illegal and unjustified as alleged? ..OPP.

Whether the petition is not maintainable in the present form? ..OPR

Whether the petition is bad for non-joinder of the necessary parties as alleged. If so,

its effect?

..OPR.

Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?

..OPR.

Whether the petitioner is estopped from filing the claim petition by his act and

conduct as alleged. If so, its effect? ..OPR.

Relief.

I have heard the ld. counsel/AR for the parties and have gone through the case file.

For the reasons detailed here under, my findings on the above issues are as

follows:—

Issue No. 1

Yes

Issue No. 2

Not pressed

Issue No. 3

Issue No. 4

Issue No. 5

Not pressed

Relief.

Claim petition allowed in part vide operative portion of the Award.

REASONS FOR FINDINGS

ISSUE NO. 1

Shri Ramesh Chand (petitioner) stepped into the witness box as PW1. In his

affidavit Ex. PW1/A submitted under Order 18 Rule 4 CPC, he reiterated on oath the contents of

the petition/statement of claim in its entirety.

In the cross-examination, he admitted that initially his services were engaged by the

Executive Engineer, HPPWD, National Highway Division, Joginder Nagar. Subsequently, being

surplus, he was transferred in the month of November, 2004 to the HPPWD (B&R) Division,

Baijnath. He denied that he used to work as per his sweet will and convenience as well as fictional

breaks were not provided to him by the respondent/department. He also denied that he has

instituted a phoney petition to harass his opponent.

Conversely, Shri J.S. Guleria, Executive Engineer, HPPWD (B&R) Division,

Baijnath (respondent) testified as RW1. He corroborated on oath the contents of the reply filed by

him.

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In the cross-examination, he denied that intentional breaks in service were given to the

petitioner from time to time so that he does not complete 240 days of continuous service. He also

denied that the workmen junior to the petitioner, whose names figure in the list Ex. RW1/B,

completed 240 days of work earlier to him. He admitted that as per the record, no notice regarding

willful absence from duty was ever served upon the petitioner.

10.

Ex.PW1/B is the copy of the letter dated 14th September, 2007 written by the

Principal Secretary (PW) to the Government of Himachal Pradesh. Vide this letter, all the Chief

Engineers and Executive Engineers etc. were directed to provide muster roll for complete month to

the workers in PWD without break instead of 15/18/20 or 30 days with intermittent breaks.

11.

Ex. RW1/A is the mandays chart relating to the petitioner.

12.

Ex. RW1/B is the mandays chart pertaining to Shri Harbans Lal and six other daily

wagers working under the respondent.

13.

Ex. RW1/C is the copy of the reply submitted by the respondent before the Labour

Officer-cum-Conciliation Officer, Kangra at Dharamshala during the conciliation proceedings

which were initiated pursuant to a demand notice served by the petitioner under Section 2A/2K of

the Act.

14.

It is the admitted case of the parties that the services of the petitioner were initially

engaged by the Executive Engineer, HPPWD, National Highway Division, Joginder Nagar. The

petitioner was transferred in the month of November, 2004 from the National Highway Division,

Joginder Nagar to the HPPWD (B&R) Division, Baijnath being surplus. There is no denial of the

fact that the petitioner is still serving the respondent/department.

15.

The mandays chart Ex. RW1/A is not in dispute. Its perusal discloses that the

services of the petitioner were initially engaged by the respondent/department on 16.5.1999.

16.

The version of the petitioner is that from the date of his initial engagement to

August, 2007, artificial/fictional breaks were provided to him by the respondent wrongly and

illegally. While denying the said fact, the respondent has pleaded that the petitioner was an

intermittent worker. He used to work as per his convenience. As and when the petitioner reported

for duty, his services were duly engaged and the muster roll was issued in his name.

17.

Section 25-B of the Act postulates as under:—

“25-B. Definition of continuous service- For the purposes of this Chapter,—

(1)

a workman shall be said to be in continuous service for a period if he is, for that

period, in uninterrupted service, including service which may be interrupted on

account of sickness or authorised leave or an accident or a strike which is not illegal,

or a lock-out or a cessation of work which is not due to any fault on the part of the

workman;

(2)

where a workman is not in continuous service within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to be in continuous service

under an employer—

(a)

for a period of one year, if the workman, during a period of twelve calendar

months preceding the date with reference to which calculation is to be made,

has actually worked under the employer for not less than—

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(i)

one hundred and ninety days in the case of a workman employed

below ground in a mine; and

(ii)

two hundred and forty days, in any other case;

(b)

for a period of six months, if the workman, during a period of six calendar

months preceding the date with reference to which calculation is to be made,

has actually worked under the employer for not less than—

(i)

ninety-five days, in the case of a workman employed below ground in

a mine; and

(ii)

one hundred and twenty days, in any other case.

Explanation.—For the purposes of clause (2), the number of days on which a

workman has actually worked under an employer shall include the days on

which—

(i)

he has been laid-off under an agreement or as permitted by standing orders

made under the Industrial Employment (Standing Orders) Act, 1946 (20 of

1946), or under the Act or under any other law applicable to the industrial

establishment;

(ii)

he has been on leave with full wages, earned in the previous years;

(iii)

he has been absent due to temporary disablement caused by accident arising

out of and in the course of his employment; and

(iv)

in the case of a female, she has been on maternity leave; so, however, that

the total period of such maternity leave does not exceed twelve weeks”.

18.

The above quoted Section enjoins a duty upon the respondent/employer to provide

the work for at least 240 days in a period of 12 calendar months to the workman for the purpose of

continuous service. This means that an employer can regulate the working of an employee as per

his needs but keeping in mind the spirit of Section 25-B of the Act, an employer/respondent is duty

bound to provide the work for 240 days in a period of 12 calendar months to the

employee/petitioner. In Digwadih Colliery v. Workmen, AIR 1966 SC 75, it has been held that

“service for 240 days in a period of 12 calendar months is equal not only to service for a year but is

to be deemed continuous service even if interrupted”. The fiction of law converts service of 240

days in a period of calendar months into continuous service for one complete year.

19.

Be it stated that in computing the continuous service, notional breaks of service

cannot be ignored. Regularization of the services of an employee will depend upon his fulfilling the

criteria as laid down by the policies of the State from time to time.

20.

Now comes the all important question as to whether artificial/fictional breaks were

provided by the respondent to the petitioner as alleged or not?

To my mind, the answer to this query is in the affirmative. The mandays chart Ex. RW1/A

clarifies that from the date of his initial engagement to 31.8.2007, work for all the months was not

provided to the petitioner by the respondent. The muster roll used to be issued for an entire month

in the name of the petitioner and in the next month, no muster roll was issued in his favour by the

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respondent/department. If the petitioner used to willfully remain absent from duties from time to

time (as alleged), then why no show cause notice was issued to him by the respondent and why no

disciplinary proceedings were initiated against the petitioner by the respondent/employer? The

reasons to that effect being obscure go to show that the respondent is not speaking the truth. The

mandays chart Ex. RW1/B pertaining to Shri Harbans Lal and others unfolds that the persons junior

to the petitioner were provided the work for 240 days or more by the respondent in a block of 12

calendar months. The act and conduct of the respondent goes to show that either he was resorting to

favoritism or acting in a partisan manner with one set of the workmen so as to deprive them the

status and privileges of permanent workmen entitling them to the regularization of their services as

per the policy of the State. Browsing of the record highlights the glaring discrimination perpetuated

by the respondent.

21.

The action of the respondent in not issuing intentionally the muster rolls to the

workman for at least 240 days in a calendar year or after the gap of a month/months due to no fault

of the workman is nothing but unfair labour practice. The petitioner is to be presumed in

continuous and uninterrupted service of the respondent from the date of his initial engagement to

31st August, 2007 as per the provisions contained in Section 25-B of the Act. The breaks given by

the respondent being intentional will have no effect on the seniority and continuity in service of the

workman (petitioner).

22.

This issue is decided in favour of the petitioner and against the respondent.

ISSUES NO. 2 AND 5

23.

Not pressed.

ISSUE NO. 3

24.

Taking into account my findings on the issue No. 1 above, it is held that the State of

Himachal Pradesh and the Executive Engineer, HPPWD, National Highway Division, Joginder

Nagar are not necessary parties to the petition. They may be the proper parties.

25.

This issue too is decided in favour of the petitioner.

ISSUE NO. 4

26.

Reference No. 41/2001 (RBT No.403/04) titled as Sh. Hari Singh vs. The Secretary,

Irrigation & Public Health, Government of H.P., Shimla and two others was disposed of by this

Court/Tribunal per Award dated 13.6.2006 by one of my ld. Predecessors. Issue No. 4 was framed

to the effect as to “Whether the reference is barred by time?” Such issue was decided against the

claimant/petitioner Shri Hari Singh. It was held that since the claim petition has been preferred by

the petitioner at a belated stage, the industrial dispute raised by him has become stale because of

which the reference is not maintainable. Consequently, the claim petition was dismissed and the

reference was answered against the workman/petitioner. Aggrieved by and dissatisfied with the

Award dated 13.6.2006 rendered by this Court, the petitioner Shri Hari Singh preferred CWP

No.4050 of 2009-H before the Hon’ble High Court of Himachal Pradesh, Shimla. Such CWP was

allowed by the Hon’ble High Court vide judgment dated 09.10.2012. While setting aside the Award

dated 13.6.2006 passed by this Court/Tribunal, it was observed by the Hon’ble High Court that “the

reference had to be answered by the Labour Court and the question of the reference having been

made belatedly could have been considered at the time of giving the relief”. Similar view has been

expressed by a Division Bench of our Hon’ble High Court in H.P. State Forest Corporation versus

Presiding Judge, Labour Court, Shimla and another, 2012 (133) FLR 684. Taking into account the

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observations made in these rulings, it cannot be said that the petition is hit by the vice of delay and

laches.

27.

While testifying in the Court as PW1, the petitioner has given his age as 46 years. It

is well known that a young man like the petitioner will not sit at home during the period he is/was

out of the service. The petitioner has failed to discharge the initial onus that during the period of his

forced idleness, he is/was not gainfully employed. For these reasons, he is not entitled to the wages

for break period.

28.

This issue is also decided in favour of the petitioner and against the respondent.

RELIEF (ISSUE NO. 6)

29.

As a sequel to my findings on the various issues, the instant claim petition succeeds

in part and the same is partly allowed. The breaks given by the respondent to the petitioner up-to

31.8.2007 being artificial/fictional are held to be wrong and illegal. He (petitioner) shall be entitled

to the seniority and continuity in service from the date of his initial engagement except back wages.

The respondent is also directed to consider the case of the petitioner for regularization of his

services as per the policies framed by the State Government from time to time. It is made clear that

if the services of any person junior to the petitioner have already been regularized, he (petitioner)

shall be entitled to the regularization from the date/month of the regularization of the services of his

junior(s). Parties to bear their own costs.

30.

The reference is answered in the aforesaid terms.

31.

A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

32.

File after due completion be consigned to the Record Room.

Announced in the open Court today this 1st day of October, 2013.

RAJAN GUPTA,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

_________

IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No.

334/2012

Date of Institution

03.9.2012

Date of Decision

01.11.2013

Smt. Mansa Devi w/o Shri Puran Singh, r/o Village Talkher, P.O. Ahju, Tehsil Joginder

Nagar, District Mandi, H.P

..Petitioner.

Versus

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The Executive Engineer, H.P.P.W.D. Division, Joginder Nagar, District Mandi, H.P.

..Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947

For the Petitioner

Sh. Suresh Sharma, Adv.

For the Respondent :

Sh. Sanjeev Katoch, Dy. D.A.

AWARD

The below given reference has been received from the appropriate Government for

adjudication:

“Whether termination of services/giving breaks in services of Smt. Mansa Devi W/O Shri

Puran Singh, R/O Village Talkher, P.O. Ahju, Tehsil Joginder Nagar, District Mandi, H.P.

from time to time during November, 1998 to 31-08-2007 by the Executive Engineer,

H.P.P.W.D. Division, Joginder Nagar, District Mandi, H.P. without complying with the

provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount

back wages, seniority, past service benefits and compensation the above worker is entitled

to from the above employer?”

The case of the petitioner (as set out in the statement of claim/demand) is that her

services were engaged as a daily rated beldar on 06.10.1998 by the HPPWD in the National

Highway Division, Joginder Nagar. Later on, the workmen of the said Division including her

(petitioner) were put under the control of the newly created HPPWD B&R Division, Joginder

Nagar. The new Division came into existence in the month of January, 2004. From the date of her

initial engagement up-to 31.8.2007, the respondent/department gave her the fictional breaks from

time to time. Muster roll for 15 days in a month used to be issued in her (petitioner’s) name despite

the fact that the work for the entire month was available with the respondent/department. The

persons junior to her (petitioner) working in the same category were allowed to complete 240 days

of work in a calendar year by the respondent/department. The names of the juniors are S/Sh. Dalip

Singh and Gautam Singh etc. The juniors have also been regularized. The respondent stopped

granting the artificial breaks to her (petitioner) w.e.f. 01.9.2007. After that, she was allowed to

complete 240 days of work in each and every calendar year of her employment. The fictional

breaks were given by the respondent arbitrarily. She has been discriminated. The work for which

her services were engaged is of permanent nature and is still continuing. From 06.10.1998 to

31.8.2007, she requested the respondent time and again to stop giving her the fictional breaks, but

in vain. During the break period, she remained without work and could not get employment

anywhere else despite the best efforts. She is entitled to the seniority for the break period. This

Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as General

Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the workmen.

The act and conduct of the respondent is illegal and unjustified. It is also violative of Sections 25-F,

25-G, 25-H and other provisions of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for

short).

As such, as is apparent from the prayer clause of the petition/statement of claim, the

petitioner has claimed the following relief(s) in this case:—

“the claim petition of the petitioner may kindly be allowed and he be given the benefit of

seniority for the period of fictional breaks alongwith back wages, he be regularized with

other consequential service benefits or any other relief, to which this Hon’ble Court deems

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the petitioner fit under the facts and circumstances stated supra may also be granted in

favour of the petitioner and against the respondent HPPWD and the reference may kindly be

allowed in favour of the petitioner with cost in the interest of justice and justice be done”.

On notice, the respondent appeared. He filed detailed reply controverting the

averments made in the petition/statement of claim. Preliminary objections have been taken to the

effect that the claim petition is not maintainable since no legal or fundamental right of the petitioner

has been infringed. The State of H.P. and the Executive Engineer, National Highway Division,

HPPWD, Joginder Nagar are necessary parties to the case. They have not been joined as parties to

the lis. The petition is hit by the vice of delay and laches.

On merits, it has been owned that the services of the petitioner were engaged as a daily

wager by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar in the

month of November, 1998. His (respondent’s) office was created in the month of January, 2004

vide notification dated 9th December, 2003 issued by the Government. The office started

functioning w.e.f. 2nd January, 2004. After creation of his (respondent’s) office, the petitioner and

some other workmen were transferred from the HPPWD, National Highway Division, Joginder

Nagar to the HPPWD (B&R) Division, Joginder Nagar. The claim of the petitioner prior to

01.1.2004 relates to the office of the Executive Engineer, National Highway Division, HPPWD,

Joginder Nagar, who has not been joined as a party to the case. No fictional breaks were provided

to the petitioner as alleged. The work was made available to the petitioner on her verbal requests

from time to time as per the availability of the funds and requirement. At the time of engaging the

services of the petitioner, she was duly informed that she has been engaged for a particular period

of 10-15 or 20 days and his (respondent’s) office is not in a position to provide the work to her

(petitioner) for the whole month. The mandays chart of the petitioner is annexure R2. Almost all

the workmen, whose names have been disclosed by the petitioner, are senior to her. Moreover, to

meet any exigency or natural disaster/calamity, the department had to keep a permanent gang of the

beldars/daily waged workers to be deployed in emergency. The petitioner has not been

discriminated. At the time of the disengagement of the workmen due to non availability of the work

and the funds, the principle of ‘last come first go’ was strictly followed except in case of the

workmen who were employed to meet out the emergent situation. The petitioner is not entitled to

any protection under the Act. Now she is working continuously with him (respondent). The instant

industrial dispute has been raised by the petitioner at a belated stage in the year 2010. She did not

lodge any protest earlier at any point of time. During the period, the petitioner remained out of the

job, she was gainfully employed as an agriculturist. The Award dated 02.11.2010 rendered in

Reference No.110/2006 has no bearing on the facts of this case. The petition is meritless.

In these circumstances, the respondent prays that the petition in hand be dismissed.

In the rejoinder, the petitioner has reiterated the contents of the petition/statement of

claim and refuted the objections put forth by the respondent. It has been pleaded that the entire

service record pertaining to her (petitioner) was handed over by the National Highway Division to

the respondent. Executive Engineer, National Highway Division, Joginder Nagar is not a necessary

party to the petition. Her (petitioner’s) services were never disengaged due to the non-availability

of the work and the funds. The persons junior to her have not been employed to meet an emergent

situation or due to the exigency of work.

Per order dated 20.3.2013, following issues were struck:

Whether the termination of the services/giving breaks in service to the petitioner by

the respondent from time to time as per the reference is illegal and unjustified as

alleged?

.. OPP.

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Whether the petition is not maintainable in the present form?

..OPR.

Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?

..OPR.

Whether the petition is bad for non-joinder of the necessary parties as alleged. If so,

its effect?

..OPR.

Relief.

I have heard the ld. counsel/AR for the parties and have gone through the case file.

For the reasons detailed here under, my findings on the above issues are as

follows:—

Issue No. 1

Yes

Issue No. 2

Not pressed

Issue No. 3

Issue No. 4

Relief.

Claim petition allowed in part vide operative portion of the Award.

REASONS FOR FINDINGS

ISSUE NO. 1

Smt. Mansa Devi (petitioner) stepped into the witness box as PW1. In her affidavit

Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the

petition/statement of claim in its entirety.

In the cross-examination, she admitted that her services were initially engaged in HPPWD,

National Highway Division, Joginder Nagar. HPPWD (B&R) Division, Joginder Nagar was created

in the month of January, 2004. She denied that at the time of issuance of the muster rolls, it was

conveyed to her and the other workmen that because of the non availability of the budget, their

services are being engaged for 10-15 or 20 days only. She denied that at the time of receiving the

payment or issuance of the muster rolls, she did not raise any objection regarding providing the

artificial breaks. She also denied that the instant industrial dispute has been raised by her at a

belated stage.

Conversely, Shri B.S. Barwal, Executive Engineer, HPPWD, (B&R) Division,

Joginder Nagar (respondent) testified as RW1. He corroborated on oath the contents of the reply

filed by him.

In the cross-examination, he admitted that two Sub Divisions i.e. Joginder Nagar (B&R)

and Ladbharol (B&R) were under National Highway Division, Joginder Nagar. The budget for

HPPWD Sub Division (B&R), Joginder Nagar was provided by the Himachal Pradesh

Government. The budget for the execution of the works carried out by the National Highway

Division was provided by the Government of India. He admitted that from the very beginning, the

petitioner served in B&R Sub Division, Joginder Nagar and is serving the said Sub Division even

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now. He admitted that the workmen whose names find mention in Ex. RW1/D were engaged after

the employment of the petitioner and they completed 240 days of work earlier to her. No notice

regarding absence from duties was ever given to the petitioner. He admitted that the persons junior

to the petitioner have already been regularized. The nature of work being done by the petitioner and

her juniors was the same. He denied that he has given a phoney statement.

10.

Ex. RW1/A is the copy of a notification dated 9th December, 2003 issued by the

Public Works Department, Govt. of Himachal Pradesh. It depicts that the National Highways set up

was restructured.

11.

Ex. RW1/B is the copy of an office order dated 2nd January, 2004 issued by the

respondent. It unfolds that the newly created B&R Division, HPPWD, Joginder Nagar became

functional w.e.f. 2nd January, 2004 (forenoon).

12.

Ex. RW1/C is the mandays chart relating to the petitioner.

13.

Ex. RW1/D is the mandays chart/year-wise working days details in respect of the

daily waged beldars namely Smt. Geet Devi and nine others.

14.

It is the admitted case of the parties that the services of the petitioner were engaged

as a daily waged beldar and she is working continuously. The mandays chart Ex. RW1/C unfolds

that the petitioner was initially employed on 25.11.1998.

15.

It is an admitted fact that the services of the petitioner were initially engaged by the

Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. From the statement

made by the respondent (RW1), it can be gathered that two B&R Sub Divisions i.e. Joginder Nagar

and Ladbharol were working under National Highway Division, Joginder Nagar. From the very

beginning, the petitioner is serving HPPWD (B&R) Sub Division, Joginder Nagar, which

admittedly came under the control of the respondent with the creation of new B&R Division at

Joginder Nagar in the year 2004. Therefore, it can be safely said that from day one, the petitioner is

an employee of B&R Division and not the National Highway Division at Joginder Nagar.

16.

The mandays chart Ex. RW1/C clarifies that from the month of November, 1998 to

31.8.2007, work for the entire month was not provided to the petitioner by the respondent. The

muster rolls for 10-20 days in a month were issued in the name of the petitioner. If the services of

the petitioner used to be engaged for 10-20 days every month due to the non availability of the

budget and work, then why the persons junior to her (whose names figure in the list Ex. RW1/D),

were provided the work for 240 days or more by the respondent? The reasons to that effect being

obscure go to show that the respondent is not speaking the truth. The act and conduct of the

respondent goes to show that either he was resorting to favoritism or acting in a partisan manner

with one set of the workmen so as to deprive them the status and privileges of permanent workmen

entitling them to the regularization of their services as per the policy of the State. Browsing of the

record highlights the glaring discrimination perpetuated by the respondent.

17.

The action of the respondent in not issuing intentionally the muster roll for the entire

month to the workman due to no fault of the workman is nothing but unfair labour practice. The

petitioner is to be presumed in continuous and uninterrupted service of the respondent from the date

of her initial engagement to 31st August, 2007 as per the provisions contained in Section 25-B of

the Act. The breaks given by the respondent being intentional will have no effect on the seniority

and/continuity in service of the workman (petitioner).

18.

This issue is decided in favour of the petitioner and against the respondent.

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ISSUE NO. 2