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Judgment
V.K. Sharma, J.—The Petitioner who was working as daily wage beldar on the establishment of the Respondent-department, had met with an accident on 6.11.1996 during the course of his employment with the said Respondent and had thereby suffered permanent disability to the extent of 55%. Consequently, the employer which is the State though was expected to be a model employer, acted otherwise and removed the Petitioner from the daily wage employment. Being aggrieved by and dissatisfied with, he took the matter to the erstwhile HP State Administrative Tribunal by filing original application (OA) No. 1113 of 1998 on 9.7.1998 which on the abolition of the said Tribunal has been transferred to this Court and has been registered as CWP (T) No. 5133 of 2008.
The petition has been filed on the following prayers, vide para 7 (i) to (v):
i) That the orders of retrenchment whereby the applicant has been retrenched from work by theRespondent No. 4 as per the orders of RespondentNo. 3 may be quashed and set-aside and the applicant be permitted to perform his duties as before on stock storage muster Roll.
ii) That the seniority of the applicant may be ordered tobe protected and maintained from February, 1992when he was engaged as beldar for the first time with the I.P.H. Department till 25.6.1998 when hewas unlawfully retrenched.
iii) That the period from 6.11.1996 to 13.11.1997 inwhich the applicant remained under treatment beordered to be treated as on duty period and theapplicant held entitled to receive wages for the same. Since the applicant reported for duty on 18.11.1997 and the Respondents failed to engagehim, hence he has to be treated on duty without anybreak from February 1992 to date.
iv) That the Respondents may be ordered to protect theseniority right from February, 1992 to 25.6.1998and he may be held entitled to get wages for theperiod from the date of accident i.e. 6.11.1996 till11.2.1998 because during this period he was unableto attend the duty though he was ready and willingbut was prevented due to circumstances beyond hiscontrol.
v) That the Respondents may be ordered to take lightduty from the applicant he should not be posted far away from his native place as he became handicapped during the course of employment."
In the reply filed on behalf of the Respondents, the following stand has been taken in the preliminary submissions:
In this connection, it is submitted that the applicant hasbeen engaged on daily paid basis as beldar w.e.f. 1.1.92and has been engaged on daily paid basis as beldar w.e.f. 1.1.92 and has worked as such with the Respondent department continuously till 11/1996. During the course of working on 6.11.96 the applicantmet with an accident and referred for treatment to Indira Gandhi Medical College and Hospital Shimla. The medical re-imbursement for treatment at Indira Gandhi Medical College and Hospital Shimla had been borne bythe Respondent Department and he was paid re-imbursement amounting to Rs. 13189/-vide Vr. No. 8 dated 13.12.96 and Rs. 7299 vide Vr. No. 12(17) dated 19.8.97. Simultaneously a case for compensation wasforwarded to the compensation officer Mandi, which hasbeen decided on 16.12.97 granting compensation amounting to Rs. 1,04,124/-. The payment of said compensation has been made to the applicant. As percertificate issued by the Medical authority the applicanthas been declared 55% disabled for which compensationby applying relevant factor by the Commissioner UnderWorkman Compensation Act HPPWD Mandi has beenworked out and announced and paid off vide Cheque No. 258596/004792 dated 13.5.98 amount to Rs. 83636 (Rs. 1,04,124-20488 Medical re-imbursement already paid). After discharge from Hospital the applicant approachedthe Assistant Engineer, I & PH Sub-Division, Churag forre-engagement having 55% disability and the applicantwas engaged on humanitarian consideration to providehim subsist livelihood till the decision of compensation. There is no work under the department termed as Lightduty. The applicant has been declared 55% disable asexplained supra, the amount assessed as compensationfor this disability amounting to Rs. 104124/-(Rs. 83636+20488) has been paid by the department to theapplicant. The amount paid is sufficient to make livelihood by the applicant and his family members in near future by establishing some business shop etc. Keeping in view the disability of the applicant and amount paid as compensation to the applicant, he is notlegally entitled for any kind of engagement. At the sametime such light work is not available with the department where the said applicant can be appointed.
On 28.4.2010 the following order was passed by this Court in this matter:
During the course of his employment Petitionersuffered permanent disability to the extent of 55%. thatthe provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act) are applicable to the employees of the State cannotbe disputed. Section 47 of the Act, which is mandatoryrestrains the establishment from dispensing with theservices of an employee who acquires disability during his service. The Apex Court in Kunal Singh Vs. Union of India (UOI) and Another, has clearly held it so
The petition was filed in the year 1998. Before some decision is taken on merits it is only desirable that,in the interest of justice, the Respondents themselvesconsider the matter at their level and take a decision with regard to the Petitioner''s entitlement under theAct. This aspect of the matter has not been consideredby the State. The decision be positively taken, at thehighest level, within a period of eight weeks from today. List on 12.7.2010. Dasti copy.
In compliance of the above order dated 28.4.2010 an affidavit of Er. A.K. Gupta, Superintending Engineer I & PH Circle, Sundernagar has been filed along with order dated 11.10.2010 Annexure R-A1 of the Government of Himachal Pradesh, Irrigation and Public Health Department which is to the following effect:
No. IPH-A-E(3)-76/2010 Government of Himachal Pradesh Irrigation & Public Health Department
From
The Pr. Secretary (IPH) to the Govt. of Himachal Pradesh
To
The Engin-Chief I & PH Deptt. Shimla-1 Dated Shimla-2 11, October, 2010
Subject: In the matter of Bhoop Ram v. State of HP. CWO(T)5133/08
Sir,
I am directed to refer to your letter No. IPH (LC)-CWP(T) 5133/08 (Bhoop Ram)2626-29 dated 14.9.2010on the subject cited above and to say that the abovematter was taken up with the Law Department forseeking them advice on the following points:
Whether he (Bhoop Ram) should be taken backonly on daily wage? Or
He should be made a regular employee w.e.f. 2010 onwards or Whether any benefits (financial) or seniorityaccrue for wrong retrenchment or not allowing his joining.
Whether any benefits (financial) or seniority accrue for wrong retrenchment or not allowing his joining.
Whether benefits of daily wages or regular begiven prospectively.
On which the Law Department has given theiradvice as under:
Since, the propositions No. 1&2 are inter-linked, assuch the same are being taken together for tenderingthe requisite opinion. In this behalf, it is pointed outthat it is an admitted fact on record that Sh. Bhoop Ramwas a daily waged beldar from 1992 to 6.11.1996 (whenhe met with an accident in the course of the employment) and it is also an admitted fact that hisservices were dispensed with and he was not allowed tojoin duty in November, 1997 after sustaining 55% injury.
In the given situation in hand, it is opined that theservices of Sh. Bhoop Ram are to be taken back notionally on daily wages bases retrospectively and bygiving him consequential benefits of such notional seniority his services are to be regularized retrospectively from such date when he becomes eligible for such regularization.
With respect to proposition No. 3 it is pointed out that Sh. Bhoop Ram is entitled for the benefit of retrospective consequential seniority only and no financial benefits are to be given to him.
So far as proposition No. 4 is concerned, in thisbehalf it is pointed out that the benefits of daily wagesor regular are to be given retrospectively only to the extent of seniority thereof so far as actual financialbenefits are concerned the same have to be givenprospectively from the actual date of joining by fixing itnotionally from stage to stage.
You are, therefore, requested to take further necessary action in the matter accordingly under intimation to this department.
Yours faithfully, Sd/- Under Secretary (IPH) to the Govt. of Himachal Pradesh.
In view of the above decision dated 11.10.2010 Annexure R-A1 of the Government, the petition is disposed of with a direction to Respondent No. 2/the competent authority to implement the same within 30 days from today, failing which the Petitioner shall be entitled for back wages to the extent of 30% along with interest @ 6% per annum from the date(s) due.
The petition as also pending CMP(s), if any, stand disposed of.