1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 5536 of 2008 Date of decision: 21.12.2010 ________________________________________________________________ Kuldip Singh .....Petitioner. Versus Himachal Pradesh Forest Corporation & others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes ________________________________________________________________ For the petitioner: Mr. B.S. Ranjan, Advocate. For the respondents: Mr. Bhupender Thakur, Advocate V.K. Sharma, J. (Oral). The petition has been filed for grant of the following substantive relief vide para 7(a): “That the respondents be ordered to pay the applicant salary and allowance in the pay scale of regular Chowkidar with consequential benefits w.e.f. April, 1994.” 2. In reply on behalf of the respondents the following stand has been taken vide paras 3, 6(d), (e) and (i): “3. The facts stated in this para are also admitted to 1 Whether reporters of Local Papers may be allowed to see the judgment? yes 2 be correct, but the order dated 13.12.1997 regularizing the services of the respondent w.e.f. 1.1.1998 has been issued by the respondent No.3 inadvertently as the applicant has not completed 240 days in the years 1992 and 1993 as shown in Annexure-R/1. The applicant worked for 232 days in the year 1992 and 132 days in the year 1993. The respondent No.3 came to know about these facts after verification, but by that time the order of regularization of the services of the applicant had been issued. The applicant is being paid Rs.45.75 p. per day as daily wager as his services have been wrongly regularized. He is not entitled to the benefit of regularization and salary etc. as claimed in the para. 6(d). It is correct that the applicant was regularized w.e.f. 1.1.1998 but his orders of regularization were wrong in view of Annexure-R/1 because the applicant only worked for 232 days in the year 1992 and 132 days in the year 1993. The respondents came to know about his absence from duty in the year 1992 and 1993 after verification but by that time the orders of regularization dated 31.12.1997 had been issued by the respondent Nos. 3 inadvertently. Therefore, the applicant is being paid Rs.45.75 P. as daily wager w.e.f. 1.1.1998 to which he is entitled. 6(e) The applicant is not entitled to the salary in the pay scale of Rs.750-1410 as his services have wrongly been regularized as Chowkidar in view of the facts detailed above to the effect that he has not completed 240 days in a calender year of 1992 and 1993. He is also not entitled for the arrears of pay and allowances and other consequential benefits. 6(i). The case laws cited in these paras are not disputed but the same are not applicable to the 3 present case as the applicant has not completed the work of Timber Watcher for a period of 240 days in the calender years 1992, 1993 Annexure- R/1.” 3. Rejoinder refuting the above stand and reiterating the averments set up in the petition has been filed. 4. Before proceeding further it shall be pertinent to notice at this stage that earlier also the petitioner had filed an Original Application (OA) No. 1408 of 1993, titled Shri Kuldip Singh versus H. P. State Forest Corporation Limited and another before the erstwhile Himachal Pradesh State Administrative Tribunal (Since abolished), records whereby have been called for and perused, with the following prayers: “7(a). That the service of the applicant beordered to be regularized from the date of his completion of 240 days of service on his respective post of Depot Watcher in regular pay scale of the post, with arrear of pay allowances and other benefits including back wages. 7(b). That the respondents be ordered to re-instate/re- engage th service of the applicant as Depot Watcher with back wages, arrear as regular employees and other benefits.” 5. The above OA No. 1408 of 1993 was finally disposed of by the said Tribunal vide order dated 22.8.1995 which is to the following effect: “The applicant has been working with the respondents since March, 1984 on different dates for different periods and is entitled for regularization. In these circumstances the respondents are directed to consider the case of the applicant on merits in 4 accordance with law and in light of the judgment of the apex court in Mool Raj Upadhayaq versus State of Himachal Pradesh and Others 1994(2) SLR 377 and decide the same within a period of six months with liberty reserved to the applicant to approach this Tribunal again on the same cause of action, should he feel dissatisfied. It is clarified that the applicant who was disengaged and was subsequently re-engaged vide orders of this Tribunal dated 21.7.1993 shall be deemed to be continuously working. The break that occurred in the meanwhile due to the impugned termination order shall be treated as duty and shall be taken into consideration for the purpose of counting service for regularization. However, they shall not be paid back wages. The respondents are directed to pay the applicant enhanced wages w.e.f. January,1, 1994 as per judgment of the apex court referred to above. The application is finally disposed of in the above referred to terms. Sd/- ( M.G. Chitkara) Vice Chairman (Hari Singh) August 22,1995 Member (KC) 6. In the face of the above order dated 22.8.1995 of the Administrative Tribunal, it is admitted on behalf of the respondents that the petitioner remained on their employment as daily wage chowkidar during 1984 to 1997, as per the following mandays chart: 5 Year Days 1984 23 1985 122 1986 350 1987 363 1988 357 1989 318 1990 351 1991 351 1992 232 1993 132 1994 332 1995 287 1996 245 1997 324 7. Admittedly the petitioner was regularized as chowkidar vide memorandum dated 31.12.1997, Annexure-A2. He submitted joining report Annexure-A3 in the forenoon on 1.1.1998. However, according to the petitioner though he was serving the respondents as regular chowkidar w.e.f. 1.1.1998, yet he was being paid daily wage of Rs. 45.75 as daily wager w.e.f. 1.1.1998 which was illegal, against law and principles of natural justice. However, according to the respondents though the petitioner was regularized w.e.f. 1.1.1998, yet his orders of regularization were wrong in view of the mandays chart Annexure-R/1 for the period 1992 to 1997 in as much as that he had worked only for 232 days in the year 1992 and 132 days in the year 1993. The factum of the petitioner not having put in 240 days during 1992 and 1993 came to the notice of the respondents lateron and it was found that the orders of regularization dated 31.12.1997 had been issued by respondent 6 No.3 inadvertently. Therefore, the petitioner was being paid Rs.45.75 as daily wager w.e.f. 1.1.1998 to which he was entitled. 8. Though at the time of hearing it is submitted by the learned counsel for the respondents that the orders of regularization dated 31.12.1997 whereby services of the petitioner were regularized as chowkidar were lateron withdrawn on 28.5.1998, yet no such order has been brought on record. 9. It is not in dispute that after the services of the petitioner were regularized and he submitted joining report Annexure-A3, he was not paid wages of regular chowkidar and instead was offered daily wage @ Rs. 45.75. 10. Against the above backdrop, the petitioner has averred as under vide relevant part of para-3 of the rejoinder: “ After his regularization the petitioner has joined on regular basis but to the utter surprise he was not paid salary of a regular hand rather his salary bill was prepared @ 45.75 as is given to a daily waged worker. The petitioner has not drawn the wages being paid on lower side and the respondent force the petitioner orally not to come to the office and thereby was once again arbitrarily and illegally not allowed to come to work without any notice of any kind whatsoever and no reasons were assigned for his such disengagement rather it is the unilateral stand taken by the respondent that t6he respondent has issu8ed regularization order inadvertently.” 11 In view of the above and particularly in the face of the aforesaid order dated 22.8.1995 of the Administrative Tribunal 7 coupled with the fact that during the period from 1984 to 1997 when the petitioner had worked as daily wage chowkidar on the establishment of the respondents, he had put in more than 240 mandays during 10 years i.e. 1986 to 1991 and thereafter from 1994 to 1997, albeit the fact that in the interregnum the requirement of 240 days was not fulfilled during 1992 and 1993, when he had worked for 232 and 132 days, respectively, there shall be a direction to respondent No.1 to reinstate the petitioner in service as regular chowkidar with immediate effect on production of copy of this judgment by him to the said respondent. However, it is made clear that in view of the principle of “no work no pay”, the petitioner shall not be entitled for any back wages. 12. The petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 21st December, 2010 (Jai)