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Judgment
Nidhi Gupta, J.
Present Civil Writ Petition under Articles 226/227 of the Constitution of India has been filed by the petitioner for issuance of a writ in the nature of certiorari for quashing Impugned order dated 24.10.2001 (Annexure P-10) and further issue a writ in nature of mandamus directing the respondent authorities to regularise the services of the petitioner from the date of his entitlement; and further issue a direction to the respondent authorities to follow the principle of equal pay for equal work and release all the arrears of salary and other allowances together with interest to the petitioner.
It is inter alia submitted by ld. counsel for the petitioner that the petitioner was appointed as Beldar on daily wages in the respondent PWD (B&R) Branch on 01.01.1989. On 01.08.1993 services of the petitioner were terminated without notice. Accordingly, petitioner had filed a Labour reference challenging the said order dated 01.08.1993. Vide Award dated 17.03.1997 (Annexure P-1), the Labour Court had directed reinstatement of the petitioner with continuity of service w.e.f. 01.08.1993; whereafter, petitioner was reinstated on 1.2.1999. Learned counsel contends that, therefore, in view of the Award passed by the Labour Court, the petitioner is continuing on the post of Beldar since 01.01.1989.
It is submitted that the respondent State had issued Instructions dated 27.05.1993 (Annexure P-2) for regularization of services of employees who had completed 5 years’ continuous service as on 31.03.1993. It is contended that in view of the facts noted above, the petitioner was eligible for regularization.
It is submitted that again another set of Instructions was issued on 18.03.1996 (Annexure P-3) whereby employees completing 3 years service as on 31.01.1996 were entitled for regularization. As petitioner was eligible under the said 1996 Instructions, the petitioner had submitted a representation dated 11.01.2000 (Annexure P-4) seeking regularization in terms of the above policies.
However, when no action was taken thereupon, the petitioner had filed Civil Writ Petition 11129 of 2001; which was disposed of vide order dated 31.07.2001 (Annexure P-5) directing the respondents to decide the representation of the petitioner.
Pursuant thereto, the respondents vide communication dated 04.09.2001 (Annexure P-6) had requested certain documents from the petitioner, which the petitioner had replied to vide letter dated 12.09.2001 (Annexure P-7).
Thereafter, vide letter dated 17.09.2001 (Annexure P-8), respondent No. 3 had directed the petitioner to get himself medically examined from the Civil Surgeon. Respondent No. 3 had further requested the Civil Surgeon, Sonepat to intimate him as to whether the petitioner is fit to do his duties or not.
It is submitted that after that the petitioner had submitted legal notice dated 24.09.2001 (Annexure P-9) upon the respondents.
However, the respondents have passed the impugned order dated 24.10.2001 (Annexure P-10) rejecting the claim of the petitioner on the ground that the petitioner had failed to supply the required details of service; and on the ground that the petitioner had not completed 240 days work within 12 months.
Ld. counsel argues that from the above facts, it is clear that the impugned action is unsustainable. It is contended that respondent No. 3 had passed the impugned order with biased and malafide intention. In doing so, respondent No.3 has totally ignored the Award (Annexure P-1) passed by the Labour Court wherein while answering the reference, Labour Court had come to the conclusion that the petitioner had worked continuously as Beldar during the period 01.01.1989 to 31.07.1993. It is contended that, therefore, the impugned order is contrary to the findings recorded by the Labour Court.
It is further submitted that the petitioner was appointed against the regular and vacant post available in the department as back as on 01.01.1989 and since then the petitioner is continuing on the post. Thus, the petitioner can not be deprived of the benefits of regularisation of his service.
It is urged that the post being occupied by the petitioner is regular, vacant and permanent, but the respondent authorities have been keeping the petitioner on daily wages, merely to deprive him from service benefits and kept his future uncertain. The respondent authorities have been keeping the petitioner on daily wages basis, though the petitioner has completed continuous service of more than years 10 and has been discharging the duties and functions akin to those being discharged by regular employees. There has been no difference in the nature of duties of the petitioner viz-a-viz a regular employee of the department situated similarly except regarding payment of salary and benefits. Not only the petitioner is being paid less but also deprived from all other service benefits like Provident Fund, Leave Encashment and Medical Aids etc.
Ld. Counsel also refers to the submissions made by the petitioner in para 12 (xiv) of the present writ petition, wherein it is stated as follows: –
“That the gap period occurred, if any, in the service of the petitioner was beyond the control of the petitioner and the same was occurred due to the illegal act of the respondent authorities.”
Thus, no valid reasons have been recorded while passing the impugned order. It is contended that respondent No. 3 is inimical towards the petitioner as the petitioner has approached this Court for his rightful claim.
It is accordingly prayed that the impugned order dated 24.10.01 passed by respondent No. 3 be set aside, and direct the respondent authorities to regularise the services of the petitioner on the post of Beldar from the date of his entitlement and further issue a direction to the respondent authorities to follow the principle of EQUAL PAY FOR EQUAL WORK and also release all the arrears of salary and other allowances together with interest to the petitioner within stipulated period.
Per contra ld. State counsel has contested the submissions of the petitioner and submitted that in actual fact the petitioner has been regularized in the year 2002. Wheres the petitioner is seeking regularization since 1996. It is submitted that for inducting into regular service, medical examination is necessary for which the petitioner was called vide letter dated 17.9.2001, but he never turned up. As such, the petitioner could not be regularized. It is accordingly prayed that the present petition be dismissed.
No other argument is made on behalf of learned counsel for the parties. I have heard ld. counsel and perused the case file and record in detail. I find no merit in the submissions advanced on behalf of the petitioner.
It is first to be noted that it is the own stated case of the petitioner that after his alleged termination on 1.8.1993, petitioner had again worked in the respondent-Department from 1.10.1995, till 31.3.1996. The petitioner while appearing before the Labour Court as WW-1 has himself stated that he had worked in the respondent-Department from 1.10.1995, till 31.3.1996. In this regard, the following paras of the ex-parte Award dated 17.3.1997, are relevant and are reproduced here under: –
“5.The workman as WW-1 has stated he worked under management as Belder during the period 01.01.1989 to 31.07.1993 continuously and without any complaint, that the management again kept him employed during the period 01.10.1995 to 01.04.1996 but he was again terminated from service; that he gave a demand notice regarding his termination dated 01.08.1993; and that his service was terminated without giving him notice or pay in lieu thereof and retrenchment compensation although he had completed more than 240 days of service and he was neither charge-sheeted nor any enquiry was held against him.
6.The above evidence goes unrebutted and I find no reason to disbelieve the same.
7.From the above, evidence brought on record, it established that the workman worked continuously as Beldar under the management during the period 01.01.1989 to 31.07.1993 and his services were terminated on 01.08.1993 without giving him notice of one month or pay in lieu of notice period or retrenchment compensation and same thing happened after he was kept re-employed for the period 01.10.1995 to 31.03.1996 while terminating his services on 01.04.1996, although the workman had completed more than 240 days of service during the year immediately preceding the date of termination of his service of workman dated 01.08.1993 being in violation of the mandatory provisions of Selection 25-F of the Act. The same is illegal.”
There is no explanation forthcoming from the petitioner that if his services had been terminated on 1.8.1993, then how, when, why, and in what manner was the petitioner taken back in Service from 1.10.1995 till 31.3.1996. Nothing has even been stated by the petitioner as to how he came to be out of Service after 31.3.1996. In this regard, it is necessary to note that the respondents in their written statement have categorically stated that the services of the petitioner were never terminated by the respondent on 01.08.1993 and that the petitioner had left the job himself without assigning any reason or intimation to the department. It is curious that petitioner has not placed on record any order of termination dated 01.08.1993 stated to have been passed by the respondents. Even in the Award, there is no mention of order dated 1.8.1993 being on record. As such, it would appear that there is truth to the assertions of the respondents.
It is further to be noted that the petitioner has stated that after his termination on 1.8.1993, he has worked again from 1.10.1995, up to 31.3.1996. It is the condition of the Instructions dated 18.03.1996 (Annexure P-3) that to be eligible for regularisation, employee has to be in Service on 31.01.1996. It would therefore appear, that the petitioner had made up the above statement just to put himself in the purview of the Instructions dated 18.3.1996/P-3.
Further, as per the Instructions of 1996, services of persons who had completed 3 years service as on 31.01.1996 and had rendered 240 days in each year are liable to be regularized. It is further stipulated that the person to be regularized should be on duty on 31.01.1996. However, as petitioner was not in Service on 1.8.1993, and admittedly, there had been break in Service, as such, the petitioner was regularized only in the year 2002; and has rightly been refused regularisation from 1996.
It is also admitted fact on record that after the passing of the Award dated 17.3.1997, petitioner joined back into Service only on 1.2.1999. Thereafter, it is the case of the petitioner as stated in para 10 of his writ petition, as follows:-
“That the respondent no. 3 instead of regularising the service of the petitioner on the basis of award attached as Annexure P-1 and in view of the instructions dated 27.05.93 and 18.03.96, with malafide intention directed the petitioner on 17.09.01 to get himself medically examined from the civil surgeon Sonepat. The respondent no.3 intentionally, willfully and with malafide intention mentioned in the letter dated 17.09.01 that the petitioner is unable to do his normal duty. The respondent no.3 requested the Civil Surgeon Sonepat that after conducting the medically examination of the petitioner, he be intimated whether the petitioner is fit to do his job of labourer or not, despite the fact that the petitioner is working in the Department for the last more than 12 years and is performing the duties sincerely diligently and honestly. A copy of the letter dated 17.09.01 is being attached as Annexure P-8. The petitioner after receiving the letter dated 17.09.01 issued a legal notice to the respondent no. 3 and stated that the respondent no. 3 intentionally and willfully is interfering in the administration of justice. The petitioner further requested the respondent no. 3 to decide his representation as per the direction of this Hon'ble Court vide Annexure P-5. A copy of the legal notice is being attached as Annexure P-9 with the writ petition. It is added here that the respondent no. 3 has not replied to the legal notice attached as Annexure P-9.”
In response thereto, in the written statement dated 10.09.2002 filed on behalf of respondents No. 1 to 3, it has been stated as follows:-
“That the contents of para No.10 are wrong and hence denied. The respondent No.3 directed the petitioner to get himself medically examined before the Civil Surgeon, Sonepat because the petitioner is handicapped and unable to do the labour work on the job. The respondent no.3 consider the representation of the petitioner for regularisation of services in the light of Govt. Of Haryana instructions dated 27.5.1993 and 18.3.1996 and found him unfit for regularisation because he did not fulfil the conditions as laid down in the Govt. instructions.”
In replication dated 14.04.2003 filed by the petitioner in response to the above, the petitioner has stated as follows: -
“10.That the contents of para no.10 of the written statement are wrong and denied and that of writ petition are correct and reiterated. The respondent no.3 instead of regularising the service of the petitioner with malafide intention directed the petitioner on 17.9.01 to get himself medically examine from the Civil Hospital Sonepat, despite the fact that petitioner is working in the department since 1.1.89 on the post of Beldar and are performing his duties with honesty and due diligently and there is no complaint whatsoever by the authorities in this regard. Even otherwise the case of the petitioner should have been considered by the authorities on the ground of physical handicapness but the respondent no.3 intentionally and willfully and with malafide intention and in order to deny the benefits of the regularisation of services wrote the letter on 17.9.01. The petitioner fulfills the requisite conditions as laid down in the instructions dated 18.3.96 but the authorities are bent upon to deny the benefits of regularisation to the petitioner intentionally and willfully and harassing the petitioner in one way or the other.”
From the above facts it is clear that prior to regularization, the petitioner was asked to get himself medically examined for which he was called by respondent No.3 vide letter dated 17.09.2001 (Annexure P-8). It is admitted by the petitioner that in response thereto, the petitioner had never got himself medically examined. Clearly, therefore, no error can be found in the respondent action in regularising the petitioner from the year 2002 itself; and/or in the impugned order in rejecting claim of the petitioner for regularisation from 1996.
Dismissed.
Pending application(s), if any, also stands disposed of.