IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.823 of 2006 Reserved on 14.3.2008 Date of decision 27.3.2008 Rajesh Kumar Thakur Petitioner Vs. H.P. State Forest Corpn. Ltd.. and anr. Respondents Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 No. For the Petitioner: Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate. For the Respondents: Mr. B.M.Chauhan, Advocate. Rajiv Sharma,J. A challenge has been laid by way of this petition to the Award passed by the H.P. Industrial Tribunal-cum-Labour Court, Dharamshala in Reference No.71/2002(RBT No.236/04) dated 30.5.2006. The brief facts necessary for the adjudication of this petition are that the petitioner hereinafter referred to as the workman for convenience sake, had raised a demand seeking cancellation of his transfer effected vide communication dated 25.4.2000 and also seeking regularization of his services as a Clerk. The State Government after the failure of conciliation proceedings made the following reference to the Labour Court-cum-Industrial Tribunal Dharamshala: 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 Whether the transfer of Sh.Rajesh Kumar son of Sh.Partap Chand vide order dated 17.12.1999 and 20.4.2000 and not regularizing as Clerk in the pay scale applicable to the H.P. Govt. Employee, by the (1). Managing Director, H.P. State Forest Corporation Society Kasumpti, Shimla-9 and (2) Divisional Manager, H.P. State Forest Corpn. Society Division Chamba is proper and justified? If not, from what date and what scale the above workman is entitled to be regularized?” In sequel to the reference made by the Government the workman had filed his statement of claim stating therein that he had been discharging the duties of a Clerk with effect from 1.6.1993 and sought his regularization as a clerk. He has also assailed the transfer order whereby he was transferred by the Divisional Manager, vide letter dated 25.4.2000 from the office of Divisional Manager, Chamba to Unit office, Assistant Manager, Sales Depot, Shitla Bridge, Chamba. The H.P. Industrial Tribunal-cum-Labour Court dismissed the petition on 30.5.2006. Mr.G.D.Verma, learned Senior Counsel had strenuously argued that the petitioner was entitled to be regularized as a clerk in the pay scale of Rs.3120-5160 on the basis of material placed on record and as per the statement made by RW-1 before the learned Tribunal. He also contended that the transfer of the workman was effected on 25.4.2000 on the basis of communication dated 17.12.1999 to deprive the petitioner’s status of a clerk. Mr.B.M.Chauhan, learned counsel for the respondents had supported the award dated 30.5.2006. I have heard learned counsel for the parties and have gone through the record carefully. The petitioner appeared as PW-1 and tendered Ex.P-1 i.e. the affidavit to support his case before the learned Labour Court. It is stated in the affidavit (Annexure P-3) that he had been working on daily wages 3 basis under the Divisional Office as a diary dispatch clerk since 1.12.1993 and had discharged his duties in this office up to June, 2000. He has further stated in his affidavit that he had completed 10 years of service and had completed 240 days in a block of 12 calendar months as on 31.12.2003. He has also placed on record the copies of various communications to support his case that he had been working and discharging the duties of a clerk with effect from 1.6.1993. Mr. G.D.Verma learned Senior Counsel had strenuously relied upon Annexure P-9 dated 24.6.2000 whereby the petitioner has been shown as daily wage-cum- Clerk sent by the office of Forest Working Division, Chamba to the Managing Director of Forest Corporation. It appears that the duties of Clerk were being assigned to Chowkidars, Timber Watchers and Resin Watchers. All the Directors, Divisional Managers and General Managers of the Corporation were directed vide communication dated 17.12.1999 issued by the Managing Director that no certificate should be issued to such daily wagers who had performed the duties of a clerk etc. and they should not be posted in the offices. It is apparent that after the issuance of a letter dated 17.12.1999 the workman was transferred vide letter dated 25.4.2000 from the office of the Divisional Manager, Chamba to Unit office, Assistant Manager, Sales Depot, Shitla Bridge, Chamba. The communication dated 17.12.1999 fortified the case of the workman that the practice was in vogue in the respondent Corporation to extract the work of clerk from the Chowkidar, Timber Watcher and Resin Watcher. This fact is also duly corroborated by communication dated 24.6.2000 (Annexure P-9). One Shri Mohd. Safi appeared as RW-1 on behalf of the respondent Corporation before the learned Industrial Tribunal. He has admitted that as per Ex.RW1/E Chowkidars, Timber Watchers and Resin Watchers were working as Clerks. The respondent Corporation has not placed on record the copy of the statement of RW-1 though the copy of 4 statement of RW-2 was placed on record. It was only during the course of arguments that the copy of statement of RW-1 was placed on record for perusal. The same was permitted to be taken on record. It will be pertinent to mention at this stage that two similarly situate workmen, namely, Tota Ram and Smt. Lalita Sharma had also raised the demand for seeking regularization of their services and challenging their transfer from the Divisional Office to Assistant Manager Office on the basis of letter dated 25.4.2000. The State Government after the failure of the conciliation proceedings had referred the matter to the Labour Court- cum-Industrial Tribunal. The reference made in the case of Smt. Lalita Sharma and Tota Ram were identical to the one made in the case of the petitioner. In the cases of Smt.Lalita Shamra and Tota Ram the Labour Court had allowed their petitions vide awards dated 28.9.2005 and 5.8.2005 respectively, and held that they were liable to be regularized as clerk. Since the facts of Smt.Lalita Sharma and Tota Ram vis-à-vis the petitioner are identical the Labour Court could not dismiss the claim preferred by the present petitioner. The Award made in case of Tota Ram by the Labour Court dated 5.8.2005 and in the case of Smt.Lalita Sharma dated 28.9.2005 were assailed by the respondent Corporation by way of CWP Nos.1327 of 2005 and 69 of 2006, respectively. These writ petitions were dismissed vide judgment dated 26.12.2007 by this Court and the award passed in their favour was upheld. The Corporation has itself shown the petitioner as daily wage-cum-clerk in Annexure P-9 dated 24.6.2000. It is also established that before the issuance of letter dated 17.12.1999 by the Managing Director of the Corporation the workman was discharging the duties of a clerk and it is only after this letter that the workman was transferred from the office of Divisional Manager, Chamba to the office of Assistant Manager, Sales Depot, Shitla Bridge, Chamba on 25.4.2000. 5 The Labour Court had come to a wrong conclusion that the workman should have raised the indusial dispute at the earliest. He could seek his regularization only after he has put in requisite service required for regularization. It was not necessary for the petitioner as observed by the Labour Court to seek the wages of a clerk on the principle of equal pay for equal work before raising the demand. The cause of action had arisen to the workman when he had completed requisite years of service and he was shifted out from the office of Divisional Manager to the office of Assistant Manager, Sales Depot. Consequently, it is held that the workman had been working as a Clerk with the respondent Corporation and his case also deserves to be treated at par with the cases of Smt.Lalita Sharma and Tota Ram. Accordingly the writ petition is allowed. The Award dated 30.5.2006 is quashed and set aside. The workman is entitled to be regularized as a clerk with effect from 1.1.2002 in the pay scale of Rs.3120-5160. The transfer of the petitioner from the office of the Divisional Manager to the office of the Assistant Manager, Sales Depot, Shitla Bridge, Chamba, vide letter dated 25.4.2000 is also declared null and void. No order as to costs. March 27 , 2008(g) ( Rajiv Sharma ), J.