Shri Mani Ram Sharma vs The State of Himachal Pradesh

Justice Rajiv Sharma, Judge

Mr. Raj Divender Singh, Senior Assistant, Government Degree College, Paonta Sahib has produced the entire record. The same was perused by us.

It is evident from perusal of the record that the engagement of petitioner as gardener was on daily wage basis and not by the PTA/Amalgamated Fund.

According to the mandays'' chart placed on record vide Annexure P-18, the petitioner was appointed on daily wage basis and has completed uninterrupted service of eight years with 240 days in a block of twelve calendar months except in 2003 and 2006. The petitioner has worked for 209 days in 2003 and 213 days in 2006.

Mr. V.D. Khidta, learned counsel for the petitioner has argued that the respondents have not taken into consideration the paid holidays including Sundays while determining 240 days in the years 2003 and 2006.

Their Lordships of the Hon''ble Supreme Court in Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation, have held that while calculating 240 days, Sundays and other paid holidays should be taken into consideration. Their Lordships have held as under (para 6):-

The leading authority on which reliance was placed by the learned counsel for the Management was Lalappa Lingappa v. Laxmi Vishnu Textile Mills Ltd. We may straightway say that the present question whether Sundays and paid holidays should be taken into account for the purpose of reckoning the number of days on which an employee actually worked, never arose there. The claim was under the Payment of Gratuity Act. All permanent employees of the employer claimed that they were entitled to payment of gratuity for the entire period of their service, that is, in respect of every year during which they were in permanent employment irrespective of the fact whether they had, actually worked for 240 days in a year or not. The question there was not how the 240 days were to be reckoned; the question was not whether Sundays and paid holidays were to be included in reckoning the number, of days on which the workmen actually worked; but the question was whether a workman could be said to have been actually employed for 240 days by the mere fact that he was in service for the whole year whether or not he actually worked for 240 days. On the language employed in Section 2(c) of the Payment of Gratuity Act, the Court came to the conclusion that the expression ''actually employed'' occurring in Explanation I meant, the same thing as the expression ''actually worked'' occurring in Explanation II and that as the workmen concerned had not actually worked for 240 days or more in the year they were not entitled to payment of gratuity for that year. The further question, as to what was meant by the expression ''actually worked'' was not considered as apparently it did not arise for consideration. Therefore, the question whether Sundays and other paid holidays should be taken into account for the purpose of reckoning the total number of days on which the workmen could be said to have actually worked was not considered in that case. The other cases cited before us do not appear to have any bearing on the question at issue before us.

The same view has been taken by their Lordships of the Hon''ble Supreme Court in Management of Standard Motor Products of India Limited Vs. A. Parthasarathy and Another, Thus, the respondents were required to take into consideration the Sundays and other paid holidays while calculating 240 days in the years 2003 and 2006.

The petitioner has earlier also approached this Court by way of CWP No.1645 of 2011. The same was disposed of by this Court on 31.3.2011 when second respondent was directed to consider the representation already made by the petitioner. The representation made by the petitioner was rejected by the second respondent on 13.9.2011. Primarily, the case of the petitioner has been rejected on the premise that he was working under P.T.A. and was also paid from amalgamated funds which is contrary to the record produced before us. We find that in case the petitioner is given the benefit of Sundays and other paid holidays in 2003 and 2006, he will complete 240 days in these years also. Thus the petitioner will complete eight years of continuous service with 240 days in a block of twelve calendar months enabling him to seek regularization after eight years.

Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-15 dated 13.9.2011 is quashed and set aside. Respondent No.2 is directed to regularize the services of the petitioner within a period of eight weeks from the date of production of certified copy of this judgment by the petitioner. Pending application(s), if any, also stands disposed of. No costs.