High Court of Punjab and Haryana, Chandigarh
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Albel Singh v. Punjab State Electricity Board, Patiala - CWP-19377-2005  RD-P&H 3669 (4 July 2006)
C.W.P. No.19377 of 2005
Date of decision:7.7.2006
Punjab State Electricity Board, Patiala and another .....Respondents
Coram: Hon'ble Mr. Justice S.S. Nijjar
Hon'ble Mr. Justice S.S. Saron
Present: Mr. J.S. Maanipur, Advocate for the petitioner.
Mr. Y.P. Khullar, Advocate for the respondents.
S.S. Saron, J.
The petitioner in this petition under Articles 226/227 of the Constitution of India seeks quashing of the order dated 3.11.2005 (Annexure-P.5), passed by the Chief Engineer/`Operation' (Central), Punjab State Electricity Board, Ludhiana (respondent No.2) whereby his claim for regularization has been declined.
The petitioner is a handicapped person and his left arm is amputated completely. He joined the service of the Punjab State Electricity Board (respondent No.1) (`Board' for short) as Upper Division Clerk (UDC) on ad hoc basis on 27.1.1977. His services were terminated on 9.3.1978. He served a demand notice under the Industrial Disputes Act, 1948 (`Act' for short) on 28.7.1978. The State Government referred the dispute of the petitioner with the respondent-Board to the Labour Court. The Labour Court vide its award dated 2.1.1981 set side the order of termination and ordered CWP No.19377/2005
reinstatement of the petitioner with continuity of service and full back wages.
Against the said Award of the Labour Court, the Board filed writ petition in this Court i.e. CWP No.2538 of 1981 and this Court on 2.8.1993 disposed of the said writ petition in pursuance of which only the award of the Labour Court was modified to the extent that the Board will pay 50% back wages after deducting the amount already paid. The reinstatement of the petitioner with continuity of service as ordered by the Labour Court was upheld by this Court. The petitioner in view of the Award of the Labour Court whereby his reinstatement with continuity of service was ordered claimed regularization of his service, which has been declined by the impugned order dated 3.11.2005 (Annexure-P.5) and, therefore, he assails the said order declining him regularization in service.
Learned counsel for the petitioner submits that keeping in view the order passed by the Labour Court on 2.1.1981 and by this Court on 2.8.1993 the petitioner was liable to be regularized in service in terms of the instructions dated 19.9.1978 (Annexure-P.1) issued by the Board which inter alia envisage that the services of an ad hoc employee who had completed one year service on 31.3.1978 shall be regularized w.e.f. 1.4.1978. It is contended that since the petitioner was working on ad hoc basis on 27.1.1977 and his services were illegally terminated on 9.3.1978 and the order illegally terminating his service has been set aside by the Labour Court, the petitioner is entitled to be regularized in service.
In response, learned counsel for the respondents submits that the services of the petitioner have in fact been regularized from 20.9.2004 and that the same could not be regularized in terms of the instructions dated CWP No.19377/2005
19.9.1978 (Annexure-P.1) as the petitioner was not in the service of the Board at that time. The Board issued fresh instructions on 10.11.1993 according to which the regularization of ad hoc employees is to be made applicable from the date of issue of order of regularization. Therefore, it is contended that the petitioner is not entitled to be regularized w.e.f. 1.4.1978 and he has rightly been regularized from 20.9.2004.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties. As already noticed the petitioner joined the service of the Board as UDC on 27.1.1977 and his services were terminated on 9.3.1978. The termination of his service has been held to be illegal vide Award dated 2.1.1981 passed by the Labour Court, Ludhiana, the operative part of which reads as under:- "The workman has stated that he got his name registered with the employment exchange and he could not get the job in spite of his best efforts. He had also written to the SE for adjustment against vacant post. Although other candidates who were working on ad hoc basis were adjusted but the same rule was not applied in case of this workman. In view of these circumstances, it is ordered that the workman shall be reinstated with continuity of service and full back wages. He shall report for duty within 10 days of the enforcement of this Award, the parties are left to bear their on costs." Against the above said order, the Board filed writ petition in this Court i.e. CWP No.2538 of 1981 which on 2.8.1993 modified the award of the Labour Court only to the extent of payment of back wages and instead of full CWP No.19377/2005
back wages, 50% of the back wages were ordered to be paid. However, except for modifying the payment of back wages to the extent of 50%, the award dated 2.1.1981 passed by the Labour Court was upheld. Therefore, the termination of the service of the petitioner on 9.3.1978 was set aside and he was ordered to be reinstated in service with continuity of service. Once the termination of the services of a workman has been set aside by the Labour Court, which is a Court of competent jurisdiction the logical consequence of the same would be that the petitioner had been in service and he would be deemed to be in service notwithstanding the termination.
Consequently, it is to be taken that the petitioner was in service on 31.3.1978 which is the date fixed in terms of the instructions dated 19.9.1978 (Annexure-P.1) providing for completion of one year of service for consideration for regularization. A Division Bench of this Court in the case of Avtar Singh v. Punjab State Co-operative Supply and Marketing Federation Ltd. (MARKFED), Chandigarh, 2001 (3) SCT 307 held that once the Labour Court had reinstated a workman with continuity of service he would be deemed to have actually served the department during the period between the termination and reinstatement and would be entitled to be considered for regularization under the policy. Besides, in Rajinder Kumar v. State of Haryana (CWP No.13131 of 2003) decided on 24.3.2005 (Annexure-P.3) a Division Bench of this Court held that where the petitioner was taken back in service in compliance with the award of the Labour Court with continuity of service then he shall be deemed to be in service from his initial date of joining. The respondents therein were directed to regularize the service of the petitioner therein.
In the case in hand also the Labour Court has ordered the reinstatement in service of the petitioner with continuity in service.
Therefore, the petitioner would be deemed to be in service from the date he joined service as UDC i.e. 27.1.1977 till the date of his termination on 9.3.1978 and even thereafter. As such the petitioner by fiction of law is deemed to have completed one year of service on 31.3.1978 which is the relevant date for his consideration for regularization in service in terms of the instructions dated 19.9.1978 (Annexure-P.1). This period the petitioner admittedly has completed and, therefore, he is entitled to be considered for regularization in service from 1.4.1978 otherwise the judicial orders directing the reinstatement of the petitioner with continuity in service would become meaningless. Accordingly, the writ petition is liable to be allowed as the petitioner has been held entitled to reinstatement in service with continuity in service.
Consequently, the writ petition is allowed and the impugned order dated 3.11.2005 (Annexure-P.5) passed by respondent No.2 is quashed and the respondent-Board shall consider the petitioner for regularization in service in accordance with its instructions dated 19.9.1978 (Annexure-P.1) by treating the petitioner to be in service on 31.3.1978 and having completed one year of service as on the said date.
July 7, 2006. (S.S. Nijjar)
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