IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.4034 of 2008 (OA(D) No. 236 /1997) Judgment reserved on : 6.11.2009 Date of decision : 18.12. 2009. Himal Chand …Petitioner. Versus H.P.S.E.B. and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. J.P.Upadhaya, Advocate. For Respondents : Mrs. Anjula Khajuria, Advocate. Kuldip Singh, Judge The petitioner has prayed for a direction to respondents to count his service from 5.5.1964 to 10.5.1972 for the purpose of retiral benefits, the fictional break of 16 days w.e.f. 25.4.1972 to 10.5.1972 may be directed to be regularized as leave of the kind due so as to condone the break in service of the petitioner along with consequential relief of a direction to the respondents to pay the arrears accruing therefrom with interest at the rate of 12% per annum in two months. 2. The facts, in brief, are that the petitioner was appointed as T-Mate on 5.5.1964 which post he held upto 30.4.1965. On 1.5.1965 the petitioner was promoted as Pump Operator and 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 remained as such upto 24.4.1972 whereafter he was retrenched by the Resident Engineer Construction Division, HPSEB (Board), Joginder Nagar vide memo dated 21.4.1972 after giving 24 hours notice which expired on 24.4.1972. The petitioner was paid Rs.999.75 as retrenchment compensation but no admissible gratuity under the rules. 3. The petitioner vide letter dated 10.4.1972 was re- employed as Pump Operator by the Executive Engineer, Giri Hydel Project and petitioner joined as such on 11.5.1972 under the immediate control of Assistant Engineer (Civil) Sub Division No.1, Giri Nagar. The petitioner was regularized as Pump Operator on 17.4.1978. In view of the retrenchment of the petitioner there was fictional / forced break of 16 days in the service of the petitioner for the period from 25.4.1972 to 10.5.1972. 4. The petitioner after his re-employment was directed to refund retrenchment compensation Rs. 999.75 so as to take his past service from 5.5.1964 to 11.5.1972 into account for all intents and purposes. The petitioner deposited Rs. 999.75 on 14.3.1974 and an entry to this effect was made in his service book , a copy Annexure ‘B’. The petitioner has retired on 31.8.1996 but the service rendered by him from 5.5.1964 to 24.4.1972 has not been taken into account for pension and other retiral benefits, which fact petitioner came to know recently when he happened to check his service book. The petitioner has assailed the act of respondents for not counting his service from 1.5.1965 to 24.4.1972 illegal, arbitrary and unconstitutional. The petitioner has ultimately submitted that 3 the period of 16 days from 25.4.1972 to 10.5.1972 is required to be regularized. 5. The respondents have contested the claim of the petitioner by filing reply in which preliminary objections have been taken that the petitioner was initially appointed as T-Mate work- charged w.e.f. 5.5.1964 in the Punjab State Electricity Board. The petitioner was promoted as Pump Operator w.e.f. 1.5.1965 which post he held upto 24.4.1972. On completion of Bassi Hydel Project, the petitioner was retrenched vide memo dated 21.4.1972, copy Annexure RA-I after giving 24 hours notice which expired on 24.4.1972. The petitioner was paid retrenchment compensation Rs.999.75 . 6. The petitioner thereafter was re-employed as Pump Operator work-charged vide office memo dated 10.4.1972, Annexure RA-II, he joined as such on 11.5.1972. The petitioner was regularized on the post of Pump Operator on 17.4.1978 w.e.f. 1.1.1978. In September, 1973, the respondents had decided to give monetary benefit to those work-charged re-employees of Bassi Hydel Project who were rendered surplus and consequently retrenched from their services on completion of Bassi Hydel Project and were lateron re-employed in the Board against different kinds of available posts. In these circumstances, vide letter dated 22.8.1973, copy Annexure RA-III, instructions were issued to protect their pay at the same level as they were drawing before their retrenchment. This benefit was given to only those employees, who refunded to the Board the retrenchment compensation paid to them at the time of their retrenchment from Bassi Hydel Project. In these 4 circumstances, the petitioner had refunded the retrenchment compensation amounting to Rs. 999.75 to the Board and therefore, on re-employment on 11.5.1972 in the Board his pay was protected, which he was drawing immediately on the date of retrenchment 24.4.1972. 7. The petitioner on attaining the age of superannuation has retired from Board on 31.8.1996. The service rendered by him from 11.5.1972 onwards has been taken into account for determining his retiral benefits. The previous period of his service has been ignored due to the fact that on completion of Bassi Hydel Project, he was retrenched from service on 24.4.1972 and thus, there had been break in service. The petitioner was retrenched after giving proper notice and retrenchment compensation Rs. 999.75 as required under law. The other preliminary objections are that petitioner is not an aggrieved person, he has not availed alternative remedy, respondents have not violated any legal right of the petitioner, there is no enforceable cause of action and the claim of the petitioner is time barred. On merits, the respondents have virtually taken the same pleas which they have taken in their preliminary objections. 8. I have heard the learned counsel for the parties. There is no dispute that the petitioner was initially appointed in the Punjab State Electricity Board, he was retrenched and again re-employed by the Board. The precise dispute is with respect to counting of service of petitioner w.e.f. 25.4.1972 to 10.5.1972 total 16 days for the purpose of retiral benefits. The grievance of the petitioner is that respondents have not counted his service from 5.5.1964 to 5 10.5.1972 for retiral benefits. The stand of the respondents is that there was break in service of the petitioner from 25.4.1972 to 10.5.1972 and, therefore, his service for retiral benefits was counted from 11.5.1972 to 31.8.1996 when the petitioner attained the age of superannuation and was retired from the Board. It is not the stand of the Board that in case the period of 16 days from 25.4.1972 to 10.5.1972 is counted in the service of the petitioner in that case also, the petitioner is not entitled to counting of service from 5.5.1964 to 10.5.1972 for retiral benefits. 9. The petitioner was appointed on 5.5.1964 as T-Mate, on 1.5.1965 he was promoted as Pump Operator. The respondents have not elaborated terms and conditions on which the petitioner was initially appointed and promoted. The petitioner was workman at the time of his retrenchment on 25.4.1972. The Industrial Disputes Act, 1947 (for short ‘Act’) regulates the retrenchment of a workman. The Section 25-F of the Act at the relevant time when the retrenchment notice dated 21.4.1972 was given to petitioner was as follows:- “25-F. Conditions precedent to retrenchment of workmen. – No Workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until – (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice : Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay 6 “for every completed year of continuous service” (a) or any part thereof in excess of six months ; and (c ) notice in the prescribed manner is served on the appropriate Government [ or such authority as may be specified by the appropriate Government by notification in the Official Gazette] (b)”. The perusal of retrenchment notice dated 21.4.1972 indicates only 24 hours notice was served on the petitioner as against the requirement of one month notice under Section 25-F. In the retrenchment notice, there is no reference of payment of compensation, however, in the first endorsement made on notice dated 21.4.1972, it has been stated that compensation papers etc. may also be prepared in time and submit the same to the office to avoid delay in payment. 10. It is thus clear that no retrenchment compensation was paid to the petitioner when retrenchment notice was served nor there is any material on record to show that the retrenchment compensation was paid to petitioner on 24.4.1972 when retrenchment notice was to be effective. The retrenchment notice dated 21.4.1972 served on petitioner was in violation of Section 25-F of the Act and, therefore, the same was void. The petitioner was kept out of job from 25.4.1972 to 10.5.1972 without his fault, therefore, it cannot be said that there was break in service of petitioner from 25.4.1972 to 10.5.1972. The petitioner shall be deemed to be in continuous service from 25.4.1972 to 10.5.1972. In other words, the petitioner shall be deemed to be in continuous service from 5.5.1964 to 31.8.1996 when he retired. The petitioner is entitled to counting of his entire service from 5.5.1964 to 31.8.1996 for purpose of pension and retiral benefits in accordance 7 with law. The respondents wrongly, illegally have not counted the service of the petitioner for pension and other retiral benefits prior to 11.5.1972. It is not the case of the respondents that in case the service of the petitioner is counted for the period 25.4.1972 to 10.5.1972 even then his service prior to 11.5.1972 cannot be counted for pension and other retiral benefits. The petitioner has thus made out a case in his favour. 11. No other point was urged. 12. The result of the above discussion, the petition is allowed, the petitioner is held entitled to counting of his service of 16 days w.e.f. 25.4.1972 to 10.5.1972 and is further held that the petitioner remained in continuous service of respondents from 5.5.1964 to 31.8.1996 when he attained the age of superannuation. The petitioner is also entitled to counting the entire service period from 5.5.1964 to 31.8.1996 for purpose of his retiral benefits in accordance with law and the respondents are directed to pay the petitioner admissible arrears of retiral benefits within a period of three months from today, failing which, the respondents shall be liable to pay interest at the rate of 9% on such arrears till payment. The petition is disposed of on above terms. ( Kuldip Singh ), Judge. December 18, 2009, (GR)