Sushma Devi vs State Of Himachal Pradesh And Others

Jyotsna Rewal Dua, J

Petitioner seeks a direction to the respondents to grant her work charge status w.e.f. 31.03.2003 in accordance with judgment dated 22.11.2011 passed in CWP(T) No.6 of 2010. Further prayer has also been made for a direction to respondent No.4-the Accountant General, Himachal Pradesh, to issue GPF number in petitioner’s favour.

The case of the petitioner is that:-

2(i). Petitioner was engaged as daily waged plant helper with respondent No.2-Agro Industrial Packaging India Ltd. w.e.f. the year 1989. She completed 240 days in a block of 12 calendar months from 1993 onwards. The unit of respondent No.2 was closed down. The staff working there, was declared surplus and was sent to different departments of the Government on secondment basis. Pursuant to this, the petitioner was also relieved by respondent No.2 vide order dated 11.04.2007 with further direction to her to report for duties in the office of respondent No.3-the Deputy Commissioner Shimla. The petitioner subsequently was posted by respondent No.3 at Tehsil Office Kotkhai vide order dated 13.04.2007. Her services were regularized by respondent No.3 on 07.01.2008.

2(ii). CWP(T) No.6 of 2010 was instituted by the petitioner, claiming work charge status with all consequential benefits w.e.f. 31.03.2003. The writ petition was allowed on 22.11.2011 with the following order:-

“Petitioner had been working continuously with the respondents and completed 240 days in a block of 12 calendar months with effect from 1993 onwards. However, her services have been regularised only in the year 2007. Since the petitioner had continuously been working with effect from 7th April, 1993 and completed ten years' of service in the year 2003 with 240 days in a block of 12 calendar months, her case was required to be considered for conferment of work charge status as per law laid down in Mool Raj Upadhyaya versus State of Himachal Pradesh and others, 1994 Supp. (2) SCC 316.

Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for conferment of work charge status with all consequential benefits with effect from 31 March, 2003, within a period of ten weeks after the production of certified copy of the judgment by the petitioner before the competent authority. The pending application(s), if any, also stands disposed of. No cost.”

In compliance to the direction issued in the above extracted order dated 22.11.2011, respondent No.2 on 03.01.2012 conferred work charge status upon the petitioner w.e.f. 01.01.2004.

The grievance of the petitioner in the instant petition is that she was entitled for work charge status w.e.f. 31. 03.2003, whereas respondents have conferred her this status from 01.01.2004. The substantive reliefs prayed by the petitioner in the instant petition are as under:-

“i) That this writ petition may kindly be allowed and respondents may kindly be directed to grant the work charge status w.e.f. 31.03.2003 as per judgment

(ii) dated 06 of 2010 in CWP(T) No.6 of 2010.

That the respondent No.4 may very kindly b directed to issue GPF number and start deducting GPF from salary of the petitioner in the interest of law and justice.”

The stand of respondent No.3 i.e. the Deputy Commissioner Shimla is that the petitioner joined her duties in the establishment of the State on 13.04.2007, therefore, the reliefs prayed for by the petitioner do not pertain to the said respondent.

Respondent No.4 i.e. the Accountant General, Himachal Pradesh in its reply has pleaded no role to play in the matter as the services of the petitioner having been regularized after 15.05.2005, are not covered under CCS (GPF) Rules 1960 and CCS (Pension) Rules, 1972. Its further stand is that implementation of the judgment dated 22.11.2011 passed in CWP(T) No.6 of 2010 and the decision to grant work charge status w.e.f. 31.03.2003 falls within the domain of the State.

The main contesting respondent No.2 has admitted in its reply that work charge status is to be granted as per the judgment rendered in Mool Raj Upadhyaya Versus State of Himachal Pradesh and others, 1994 Supp.(2) SCC 316. That the work charge status is to be conferred on completion of 8 years of service. This respondent pleads that the work charge status has been rightly granted to the petitioner w.e.f. 01.01.2004 as the petitioner had completed 240 days in a block of 12 calendar months w.e.f. year 1994 onwards and that the petitioner had completed only 239 days in the year 1993.

Observations:-

Having heard learned counsel for the parties and after going through the material available on record, I am of the considered view that the writ petition deserves to be allowed for the following reasons:-

5(i) While disposing of CWP(T) No.6 of 2010, this Court in its judgment dated 22.11.2011 had observed that the petitioner had been working continuously with the respondents and had completed 240 days in a block of 12 calendar months from the year 1993 onwards. Directions were accordingly given to the respondents to consider the case of the petitioner for conferment of work charge status upon her with all consequential benefits w.e.f. 31.03.2003. It is not in dispute that the respondents had accepted the judgment dated 22.11.2011. The judgment having become final, it is not open for the respondents to now urge before this Court that the petitioner did not complete 240 days in a block of 12 calendar months from the year 1993 onwards and to project that she has completed 240 days only w.e.f the year 1994.

5(ii). Even otherwise, on facts, reply of respondent No.2 also states that “petitioner had completed only 239 days in the year 1993 and has completed 240 days in a block of 12 calendar months w.e.f. 1994”. Thus even as per respondent No.2, the petitioner is short by one day in completion of 240 days in the year 1993. Assuming the stand taken by respondent No.2 to be factually correct, then also, in the facts and circumstances of the case, the projected shortfall of one day is liable to be condoned, deeming it to be a case of fictional break. More so, when respondent No.2 has itself conferred the work charge status upon the petitioner w.e.f. 01.01.2004 by counting her continuous service w.e.f. the year 1994 onwards.

The petitioner has, therefore, made out a case for grant of work charge status upon her w.e.f. 31.03.2003.

5(iii). For claiming benefit of issuance of GPF number to the petitioner and deduction of GPF from her salary, learned counsel for the petitioner has placed reliance upon the judgment dated 24.06.2015 rendered in CWP No.4713 of 2013 titled Mela Ram and another Versus State of Himachal Pradesh and others. In the said case, the petitioner therein, was engaged on daily waged basis in Agro Industrial Packaging India Ltd. as a plant helper in the year 1990. His services were terminated on 01.10.1992. Whereafter he was re-engaged pursuant to the direction issued by this Court in CWP No.1587 of 1993 filed by him. On 13.04.2007, the petitioner (therein), was sent on secondment basis to the office of the Deputy Commissioner Solan, H.P.. He instituted CWP No.2648 of 2012, seeking regularization w.e.f. 2000 alongwith all consequential benefits in view of the law laid down in Mool Raj Upadhyaya’s case (supra). The writ petition (CWP No.2648 of 2012) was disposed of on 27.04.2012 as covered by the decision rendered in LPA No.115 of 2010. The respondents were directed to grant similar treatment to the petitioner (therein). Subsequently, the State conferred work charge status upon the petitioner therein w.e.f. year 2004. With the grievance that he was required to be conferred work charge status from the year 2001 instead of 2004, the petitioner (therein), instituted CWP No.4713 of 2013. This writ petition was allowed on 24.06.2015. LPA No.29 of 2018 instituted against the judgment dated 24.06.2015 was dismissed on 29.08.2018. In the contempt petition bearing COPC No.62 of 2019 filed by the original writ petitioner (therein) the respondents filed a compliance affidavit, indicating that Mela Ram Sharma (petitioner therein) was conferred work charge status w.e.f. the year 2001. It was also undertaken by the respondents in the compliance affidavit that the pensionary benefits in his favour shall be released on receipt of the communication from the office of Accountant General, Himachal Pradesh. The relevant part of the order dated 28.08.2019 passed in COPC No.62 of 2019, noticing the contents of the compliance affidavit filed by the respondents, is as under:-

“2. Learned counsel for the petitioner has placed before me a photocopy of the compliance affidavit. A perusal thereof Indicates that respondents have conferred work charge status upon the petitioner w.e.f. 2001 instead of the year 2004 and thereafter the case has been sent to the office of Accountant General for completion of codal formalities. The respondents have further undertaken to release the pensionary benefits in favour of the petitioner immediately after the receipt of the communication from the office of Accountant General.”

Respondent No.2 in its reply filed to the present petition has only pleaded that the facts of Mela Ram Sharma’s case are different from that of the present petitioner. It is not understood as to in what form and manner the facts of the case of Mela Ram Sharma are different to that of the present case. Both the petitioners are similarly situated in respect of issues raised by them. Both are governed by the law laid down in Mool Raj Upadhyaya’s case (supra). Both have been granted work charge status by respondents in terms of Mool Raj Upadhyaya’s case (supra). Hence, on principle of parity, the petitioner is entitled to GPF number as prayed for by her. She cannot be discriminated by the respondents vis-à-vis similarly situated Mela Ram Sharma.

For the aforesaid reasons, the present writ petition is allowed. The respondents are directed to confer work charge status upon the petitioner w.e.f. 31.03.2003. Respondents are also directed to allot GPF number to the petitioner for grant of pensionary benefits. This exercise be completed by the respondents within a period of four months from today.

The pending miscellaneous application(s), if any also stand disposed of.