Urmila Devi vs Dr. Y.S. Parmar University Of Horticulture And Forestry And Others

Jyotsna Rewal Dua, J

Petitioner was engaged as a part-time sweeper for four hours daily excluding holidays at Office-cum-Laboratory Block Neri, District Hamirpur vide office letter dated 28.08.2009. Conditions No. 4 to 6 in the said appointment letter were that such part-time engagement could be terminated at any time without assigning any reason due to paucity of funds or in case the work was not found satisfactory. In case an employee remained absent from the work continuously for more than six days then also the part-time engagement was to terminate automatically. The part-time engagement was not to confer any right for regular or temporary employment against any post.

The respondents-university on 04.10.2013 adopted the policy of the State of Himachal Pradesh circulated on 27.04.2013 for regulating the service of part-time worker. The policy provided conferring status of daily wager upon part-time Class-IV employees on completion of nine years of continuous service as on 31.03.2013. On 30.04.2013, the respondents-university issued a notification for outsourcing the unskilled labour services in the university to rationalize engagement and avoid additional liability. On 10.12.2013 vide (Annexure A-1), respondents-university intimated the petitioner that her services were no longer required in the university on part-time basis. That the university had engaged the services of an outsource agency for supplying unskilled labour services and further that the petitioner was at liberty to apply through M/s Shimla Cleanways i.e. outsource agency.

It is the case of the petitioner that subsequent to letter dated 10.12.2013 (Annexure A-1), the petitioner had been working in the respondent-university but under the employment of M/s Shimla Cleanways. That petitioner’s remuneration was being paid by M/s Shimla Cleanways. The petitioner has preferred the instant petition for the grant of following substantive relief:-

“7(i) That the respondent may kindly be directed to quashed and set aside Annexure A-1 dated 10.12.2013 which is being passed by the university kept the applicant in dark, further respondent may kindly be directed to keep the applicant for daily waged basis alongwith other as per the seniority list withdrawn by the respondent Annexure A-3.”

Petitioner has also based her claim upon an office memorandum dated 18.02.2014 alongwith tentative seniority list of part-time sweepers enclosed as Annexure A/3, wherein petitioner’s seniority as on 31.03.2014 is reflected at serial No.8. Learned counsel for the petitioner contended that some of the persons figuring above her in the seniority list have been regularized by the respondent-university, whereas the petitioner has been illegally made to work through outsource agency.

This position was disputed by learned counsel for the respondents-university. According to him, status of part-time employees has been converted to the daily-wager and that of daily-wager to regular in terms of applicable Policy of the State Government as adopted by the respondent-university from time to time. Be that as it may.

Learned counsel for the petitioner placed reliance upon judgment dated 13.11.2018 passed in several connected writ petitions with lead case being CWP No.2612/2018, titled The Dean, College of Horticulture and Forestry, Neri and another Vs. Shri Rajeev Kumar and another. According to learned counsel for the petitioner, the case of the petitioner is fully covered in terms of the above judgment. Relevant part of the judgment reads as under:-

“10. It is a matter of record that the respondent-workman served the petitioners as an unskilled labourer from the year 2006 to 09.09.2014 when his services were terminated without any notice or retrenchment compensation. Record also demonstrates that initially the engagement of the workman was purportedly made for 89 days and fictional breaks were given to ensure that the respondent-workman did not complete 240 days in a calendar year. It is also evident from the record that respondent was initially engaged on 17.07.2006 and he continued to work with the petitioners till 20.07.2012, whereafter he was engaged from 15.07.2013 to 30.09.2014 for different number of working days through outsourcing agency of manpower, as per the Outsource Policy introduced w.e.f. April 2013. However, there is no documentary evidence suggesting that at any stage the services of the respondent-workman were placed at the disposal of M/S Shimla Cleanways by the petitioners.

It is apparent from the record that there is violation of Section 25-G of the Industrial Disputes Act, 1947 as workmen, namely, Asha Devi and Tara Chand, who were engaged on 13.07.2009 were permitted to complete more than 240 days in the years 2010, 2011, 2012 and also 2013, whereas on account of intermittent breaks given to the respondent-workman, he was not permitted to complete 240 days in a calendar year. Therefore, the termination of services of the respondent - workman in the year 2014 without complying with the provisions of Section 25-F amounts to violation of the provisions of the Industrial Disputes Act, 1947. It has also been rightly held by learned Labour Court that but for the fictional breaks granted to the respondent-workman, he would have completed “continuous service” in a year as envisaged under Section 25-B of the Industrial Disputes Act, 1947. This also proves that the petitioners gave deliberate breaks to the respondent-workman so that he could not complete 240 days in a calendar year. The factum of disengaging the respondent-workman periodically and retaining juniors also stands borne out from the record. In this view of the matter, we do not find any infirmity with the findings returned by the learned Labour Court directing reengagement of the services of the respondent-workman forthwith alongwith seniority and continuity in service.”

Learned counsel for the petitioner submitted that his client would be satisfied in case a direction is issued to the respondents-university to decide the representation to be made by the petitioner in light of the aforesaid judgment within in a time bound manner. Learned counsel for the respondent/university is not averse to this prayer.

Therefore without going into the merits of the case, the instant writ petition is disposed of by permitting the petitioner to make a representation to respondent No.1-university within one week from today, who shall in turn, consider and decide the same in accordance with law, as well as in light of the aforesaid judgment within a period of four weeks from the date of receipt thereof by passing a reasoned order, which shall be communicated to the petitioner. Pending miscellaneous application(s), if any, shall also stand disposed of.