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JAGDISH CHAND versus HARYANA TOURISM CORPORATION LTD.

High Court of Punjab and Haryana, Chandigarh

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Jagdish Chand v. Haryana Tourism Corporation Ltd. - CWP-5165-2004 [2006] RD-P&H 2092 (28 March 2006)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P.NO 5165 of 2004

DATE OF DECISION:17.4.2006

PARTIES NAME

Jagdish Chand ...PETITIONER

VERSUS

Haryana Tourism Corporation Ltd. ...RESPONDENT CORAM: HON'BLE MR.JUSTICE S.S.NIJJAR
HON'BLE MR. JUSTICE AJAI LAMBA

Present: Ms.Abha Rathore, Advocate for the petitioner Mr.Vishal Gupta, Advocate for the respondent ...

S.S.Nijjar,J. (Oral)

The petitioner was appointed in the Haryana Tourism Corporation (hereinafter referred to as "The Corporation") as a Helper on daily wages in February, 1982. His services were terminated on 30.11.1988. The petitioner raised an industrial dispute which culminated in award on 24.5.1993 (Annexure P-1). The Labour Court held that the termination of the services of the petitioner was neither justified nor legal. He was ordered to be reinstated with continuity of service and full back-wages. The State of Haryana had formulated a policy for regularisation on 27.5.1993 (Annexure P-7). This policy is admittedly applicable to the respondent-Corporation.

The claim of the petitioner for regularisation was not considered under the :2:

aforesaid policy. He was, however, reinstated in service and allowed to continue on the job. On 5.1.1997, a charge-sheet was issued to the petitioner with the allegation that he came on duty under the influence of liquor and that he behaved rudely with the staff member. The petitioner claims that the charge was totally false as he had always been teetotaler. Aggrieved by the attitude of the respondent-Corporation, the petitioner filed CWP No.1023 of 1997 claiming the benefit of regularisation of service and for a direction to the respondents not to victimize him in the future. However, this writ petition was disposed of on 11.11.1997 with a direction to the respondent to consider the reply submitted by the petitioner to the show- cause notice and to pass appropriate orders, thereon. It was further directed that in case the petitioner is exonerated or any other punishment is awarded to him, his case shall be considered for regularisation, in accordance with law within one month thereafter. On 8.12.1997, the respondent-Corporation again terminated the services of the petitioner. The petitioner challenged the aforesaid order of termination by filing CWP No.1718 of 1998. Since the petitioner had approached this Court without availing the remedy under the Industrial Disputes Act, the writ petition was permitted to be withdrawn granting liberty to the petitioner to approach the Labour Court. In the meantime, certain criminal proceedings had also been initiated against the petitioner, on the same charge. The petitioner was in fact convicted under Section 294 r/w Section 510 of the IPC. On appeal, the petitioner was acquitted of the charges. Thereafter, the petitioner again gave a demand notice, seeking reinstatement with full back-wages. By award dated 5.12.2000, the order of termination was set aside by the Labour Court. The petitioner was ordered to be reinstated in service. However, his :3:

back-wages was limited only to 30%. The award of the Labour Court was challenged by the respondent-Corporation in CWP No.5046 of 2001. The writ petition was dismissed by judgment dated 4.2.2003 passed by a Single Bench of this Court and the award of the Labour Court was upheld .

Against the aforesaid judgment of the Single Bench, the respondent- Corporation filed LPA No.281 of 2003 which was also dismissed by a Division Bench of this Court on 22.9.2003. Thereafter, the petitioner served a legal notice on the respondent-Corporation seeking regularisation of service, on the basis that he had completed 5 years of continuous service on 31.3.1993. This claim of the petitioner was ignored by the respondent- Corporation. Therefore, the petitioner has filed the present writ petition under Articles 226/227 of the Constitution of India, seeking an appropriate direction to the respondent-Corporation to regularise the services of the petitioner with all consequential benefits. During the pendency of the writ petition, the respondent-Corporation has regularised the services of the petitioner w.e.f. 1.10.2003 by order dated 15.2.2005 (Annexure P-8). The petitioner, therefore, amended the writ petition and challenged the order dated 15.2.2005 (Annexure P-8) only to the extent that the petitioner is entitled to be regularised w.e.f. 31.3.1993.

The respondent-Corporation has filed a written statement. It is stated that the petitioner cannot be given the benefit of the instructions dated 27.5.1993 (Annexure P-7), as he was not on duty because at the relevant time his services had been terminated. Merely because, he has been ordered to be reinstated in service with continuity would not entitle the petitioner to claim that he should be deemed to be on duty on the relevant date. The services of the petitioner had again been terminated, after :4:

following due procedure. The Enquiry Officer had given a finding that he had indulged in misbehavior and came on duty under the influence of liquor. The respondent-Corporation has reiterated the facts as narrated above.

We have heard the learned counsel for the parties at length and perused the paper-book.

Ms.Rathore, learned counsel for the petitioner submits that the solitary ground taken by the respondent-Corporation for denying the relief of regularisation to the petitioner is that he cannot be deemed to be in service, inspite of the award of the Labour Court. This, according to the learned counsel, is not the correct position in law. Once an employee is reinstated in service with continuity, the employee is deemed to be on duty for all intents and purposes. In support of the submission, the learned counsel relies on a Division Bench Judgment of this Court rendered in CWP No.809 of 1998 decided on 12.5.1998. Learned counsel for the respondent- Corporation has not cited any judgment contrary to the observations made by the Division Bench in the aforesaid judgment. Considering a similar argument, the Division has observed as follows:- "......We have gone through the record as also heard the learned counsel for the parties at length.

While rejecting the case of petitioners, respondents did not consider the effect of awards, Annexures P-1 to P-6 whereby petitioners were directed to be reinstated in service and benefit of continuity of service was given to them. Petitioners remained out of job from 2.6.1992 to June, 1996 :5:

not on their own volition but because their services had been terminated. Petitioners successfully challenged orders terminating their service and the Labour Court has not only directed the respondents to reinstate the petitioners in service but they have also been given the relief of continuity of service with full back wages. In view of the award, the question of break in service does not arise and petitioners would be deemed to be on duty from the date of termination of their services till their reinstatement."

We are in respectful agreement with the aforesaid observations made by the Division Bench. Once the Labour Court had directed the reinstatement of the petitioner with continuity of service, he is deemed to be on duty for all intents and purposes. The benefits accruing, on the basis of deemed reinstatement have to be granted to the petitioner as if he was actually on duty from the date when his services had been illegally terminated. That being so, the petitioner would be clearly entitled to regularisation w.e.f.

31.3.1993.

In view of the above, we allow the writ petition and modify the order dated 15.2.2005 (Annexure P-8) to the extent that the petitioner shall be deemed to have been regularised w.e.f. 31.3.1993.

In the earlier part of the judgment, we have observed the rather obstinate attitude adopted by the respondent-Corporation in reinstating the petitioner in service and granting him the legal dues, on the basis of the award rendered by the Labour Court. The petitioner, a low paid employee, :6:

had to face litigation before the Labour Court, in the Criminal Court and in the High Court. Even when the second award was upheld by the learned Single Judge, the respondent-Corporation filed LPA against the order of the learned Single Judge. Such an attitude adopted by a statutory Corporation cannot be encouraged. In fact the Court would be failing in its duty in case a note of warning is not issued to Statutory Corporations against indulging in frivolous litigation. In the case of Vijay Kumar Vs. State of Punjab, 2004 (6) SLR 330, a Division Bench of this Court of which one of us (S.S.Nijjar,J.) was a member, had observed as follows:- "2. In the case of Brahma Chandra Gupta V.

Union of India,, 1984(2) SLR 165, the Supreme Court deprecated the unnecessary litigious attitude of the Union of India. 15 years had been spent in litigation by an Upper Division Clerk, claiming the wages for the period of suspension.

His total claim in the suit was ridiculously low amount of

Rs.3,595.07 P. When the clerk ultimately succeeded the Union of India carried the matter in appeal. The Supreme Court deprecated the conduct of the Union of India in the following words:-

"4.The learned trial Judge accepted the case of the plaintiff-appellant and decreed the suit with costs. Surprisingly, though not

unusual these days, for this paltry sum the :7:

Union of India carried the matter in appeal.

We find it difficult to appreciate this

litigious attitude against a clerk in the lower echelon of service more so when

no principle was involved......"

In the case of the Central Cooperative

Consumers' Store Ltd. through its General Manager V. Labour Court, H.P. at Shimla & Anr., JT 1993(3) S.C. 532 the Supreme Court prefaced the judgment as follows:-

"1.How statutory bodies waste public money in fruitless litigation to satisfy misplaced ego is demonstrated by this petition.

In the aforesaid case, service of a Sales Girl was illegally terminated. After 7 years, the Assistant Registrar held that her services had been illegally terminated. She was directed to be reinstated, but back-wages were not granted.

Even then the employee accepted the order, but the Management did not permit her to join.

Ultimately, the Central Cooperative Consumer's Store Ltd. approached the Supreme Court. The conduct of the Management was commented upon by the Supreme Court in the following words:- "2..... Since then the opposite party has been knocking at the door of the petitioner but she was :8:

made to approach the appellate authority, the revising authority, the High Court, the Labour Court and finally the High Court again as the petitioner did not succeed anywhere but went to filing appeal and revision forcing the opposite party to file cross appeal or revision or even writ for her back wages and other benefits. Not one authority, even in the cooperative department found in favour of petitioner. Yet the

petitioner had the obstinacy not only to approach this Court but to place the blame of inordinate delay on adjudicatory process. Such obstinacy without the least regard of the financial implications could only be indulged by a public body like the petitioner as those entrusted to look after public bodies affairs do not have any personal involvement and the money that they squander in such litigation is not their own." (Emphasis supplied).

In view of the conduct of the Management, whilst dismissing the appeal, the Supreme Court observed

as under:-

"5. Public money has been wasted due to

adamant behaviour not only of the officer who terminated the services but also due to

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cantankerous attitude adopted by those

responsible for pursuing the litigation before the one or the other authority. They have literally persecuted her. (Emphasis supplied). Despite unequal strength the opposite party has managed to survive. We are informed that the opposite party has been reinstated. This was put forward as bonafide conduct of petitioner to persuade us to modify the order in respect of back wages.

Facts speak otherwise. Working life of opposite party has been lost in this tortuous and painful litigation of more than twenty years. For such thoughtless acts of its officers, the petitioner- society has to suffer and pay an amount

exceeding three lakhs is indeed pitiable. But considering the agony and suffering of the opposite party that amount cannot be a proper recompense. (Emphasis supplied). We,

therefore, dismiss this petition as devoid of any merit and direct the petitioner to comply with the directions of the High Court within the time granted by it. We, however, leave it open to the society to replenish itself and recover the amount of back wages paid by it to the opposite party from the personal salary of the officers of the society who have been responsible for this endless :10:

litigation including the officer who was responsible for terminating the services of the opposite party. We may clarify that the

permission given, shall have nothing to do with the direction to pay the respondent her back wages.

Step if any to recover the amount shall be taken only after payment is made to the opposite party as directed by the High Court."

In our opinion, the aforesaid observations of the Division Bench are fully applicable to the facts and circumstances of this case. Therefore, we are of the opinion that the petitioner would be entitled to interest on the consequential benefits to which he would be entitled on regularisation of his services w.e.f. 31.3.1993. We, therefore, direct that the consequential benefits of the petitioner shall be released with 9% interest w.e.f. 31.3.1993.

We also direct that the petitioner shall be entitled to cost. Cost Rs.5000/-.

(S.S.NIJJAR)

JUDGE

(AJAI LAMBA)

JUDGE

17.4.2006

MFK

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teetotaler


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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