IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.753/2005 Reserved on.20.3.2008 Decided on.3.4.2008 Himachal Pradesh State Small Industries and Export Corporation. …Petitioner. Versus The Presiding Officer and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. no. For the petitioner : Mr. Bhuvnesh Sharma, Advocate. For respondent No.2 : Mr. Ashok Sharma, Advocate. Rajiv Sharma, J. A challenge has been laid by the employer through this petition to the award dated 9.3.2005 passed by the Himachal Pradesh, Labour Court, Shimla in reference No. 109 of 1999. The brief facts necessary for the adjudication of this petition are that the State Government has made the following reference to the Labour Court: “Whether the demands raised by Sh. Surender Dutt Bhardwaj with the Managing Director, H.P. State Small Industries and Export Corporation., the General Secretary, H.P. Corporate Sector Workers’ Committee and Organizing Secretary, Coordination Committee vide demand notice dated 10.8.1998 (copy enclosed with connected clarification, dated 31.1.1999) are genuine 1 Whether the reporters of Local Papers may be allowed to see the judgment? no. 2 and justified. If yes, which of his demands should be accepted and from which date?” In sequel to the reference made by the State Government, respondent No.2 (hereinafter referred to as the workman for convenience sake) had filed his statement of claim. The petitioner-corporation (hereinafter referred to as the employer for convenience sake) filed the reply to the statement of claim. The Labour Court had answered the reference partly in favour of the workman and partly against him. The workman was held entitled to the post of Assistant from the month of March, 1985 with all consequential benefits including the seniority, pay fixation etc. He was also held entitled to salary for 77 days with effect from 1.4.1996 to 16.9.1996. Mr. Bhuvnesh Sharma, Advocate had strenuously argued that the very basis of awarding the relief by the Labour Court to the workman on the basis of letter dated 16.8.1988 is erroneous since letter dated 1.2.1975 was withdrawn on 13.2.1980 by the State. He also contended that the workman had only placed the copy of recommendations dated 16.8.1988, but has not placed on record the copy of a decision of the Service Committee dated 23rd June, 1989 whereby the proposal mooted on 16.8.1988 was not approved. Mr. Ashok Sharma, Advocate had supported the award dated 9.3.2005. I have heard the learned counsel for the parties and have also perused the record. The core question to be decided by this Court is whether the workman was entitled to be considered for appointment to the post of 3 Assistant (Accounts) with effect from 1995 or not on the basis of letter dated 16.8.1988. Letter dated 16.8.1988 reads thus: “Vide Finance Department letter No. 5/4/74-Fin-Reg. dated 1.2.1975, it has been laid down that the posts of Assistants and Clerks shall be in the ratio of 50:50. In March, 1985, the number of posts of Assistants in the Corporation was 5 and the number of posts of Clerks was 21. According to the conversion formula at that time the number of posts of Assistants should have been 13 but since out of the total 26 posts of Clerks, salary and allowances of which 8 were being met out of the grant which was being given to the Corporation under the RMDs Scheme with the impression that according to approved pattern in the said scheme no provision for the posts of Assistants existed. Thus 8 posts were not taken in to account for conversion on 50:50 basis. Out of the remaining 13 posts, only 5 posts were converted into the posts of Assistants. Thus against the total strength of 26 clerks on that date only 10 posts of Assistants existed whereas according to the formula the number of posts of Assistants should have been 13. During the subsequent year, 3 clerks have been promoted as Accountant Grade-II and as of today the number of Assistants and clerks has become equal i.e. 10 each. The effected officials have represented that in view of the strength in March, 1985, three more posts of clerks should have been converted into the posts of Assistants and they should have been promoted to the same. The submission of the officials appears to be genuine and accordingly it is requested that permission to convert 3 posts of clerks into Assistants be kindly granted from 1985 as may be permissible under the rules.” It is evident from the contents of memo dated 16.8.1988 that the Managing Director of the petitioner-corporation had sought the permission 4 to convert three posts of Clerks into Assistants. This proposal was turned down by the Service Committee in its meeting held on 23rd June, 1989. The workman has not placed on record the copy of the decision taken by the Service Committee in its meeting held on 23rd June, 1989. Once the proposal has been rejected by the Service Committee, the workman could not be held entitled to be appointed to the post of Assistant (Accounts) with effect from 1985. The Court on 29.6.2007 to effectively adjudicate upon the lis passed the following order: “In sequel to order dated 15.6.2007 the Managing Director of the petitioner Corporation has filed his personal affidavit. It is clear from the contents of the affidavit that the petitioner Corporation had been making promotions merely on the basis of draft Recruitment & Promotion Rules by treating them as a guiding factor. It is also admitted in the affidavit that in few cases, the provisions of the draft Recruitment & Promotion Rules had not been adhered to by the Corporation and the promotions were effected on ad hoc basis. The draft Rules were sent to the State Government by the Corporation on 17.6.1985 and till date the same have not been approved.. The non framing of the Recruitment and Promotion Rules for governing the condition of service of the employees negates the rule of law. The conditions of service of the employees are required to be prescribed with precision. To ensure the approval of draft of Recruitment and Promotion Rules at the earliest, Mr. Sanjay Gupta, Managing Director of the petitioner Corporation was requested to assist the Court. Mr.M.A. Khan, learned Deputy Advocate General was also requested to ensure the presence of a responsible officer from the Secretariat to assist the Court to resolve the impasse. After very meaningful interaction with both the officers, this Court formed an opinion that if suitable directions 5 are issued the Recruitment and Promotion Rules can be framed at the earliest. Accordingly the following directions are issued: 1. The Secretary (Finance) is directed to take a final decision to approve the draft Recruitment and Promotion Rules submitted by the petitioner Corporation within a period of one week from today. 2. If the Secretary (Finance) does not take any decision within the period prescribed as indicated in direction- 1(supra) the draft Rules will be deemed to have been approved by him. 3. In the eventuality of the Rules being approved by the Secretary (Finance) or deemed to have been approved, the Service Committee will take a final decision within a period of three weeks from today. The Rules after being approved finally by the Service Committee will be published in accordance with law. 4. The copies of the Recruitment and Promotion Rules framed and published will always be made available to the employees of the Corporation. 5. Henceforth, no promotion shall be effected in the Corporation till the Recruitment and Promotion Rules are finalized and approved by the Service Committee. The Secretary (Personnel) though is not a party but he is directed to apprise this Court through the office of the Advocate General whether the Recruitment and Promotion Rules for the employees of all the Corporations in the State of H.P. have been framed or not. If the rules have not been framed the reasons thereof will be separately assigned and if any draft rules are pending for consideration, the decision will be taken thereof also within a period of three weeks from today. In the meantime the Service Committee is also required to have a re-look with regard to the conversion of post of clerk to that of Assistant in the ratio of 50:50 as proposed by the Managing Director of the Corporation on 16.8.1988. The record produced for perusal of this court has been returned to the State.” 6 The meeting of the Service Committee was convened pursuant to order dated 29.6.2007. The decision taken by the Service Committee was not a speaking order. The Court again directed the Service Committee on 11.7.2007 to decide the matter afresh and to pass a speaking order. The Service Committee met on 4.2.2008 but has not interfered with the earlier decision taken in its meeting held on 23.6.1989. The Service Committee had also taken into consideration that the letter dated 1.2.1975, the very basis for the proposal mooted out by the Managing Director of the petitioner-corporation dated 16.8.1988, stood withdrawn by the State on 13th February, 1980. The Service Committee had also explained in its decision dated 4.2.2008 that in the year 1987, the posts of Clerks plus Assistants got reduced to 20 and these posts were filled up in the ratio of 50:50. Thus according to the deliberations of the Service Committee, the memorandum dated 16.8.1988 was factually incorrect whereby it was presumed that three more posts of Clerks could be converted into the posts of Assistants. The Labour Court has based its decision only on Annexure P-V/A dated 16.8.1988 without taking into consideration whether the proposal mooted by the Managing Director was ever accepted by the Service Committee or not. It is evident from the phraseology employed in Annexure P-V/A that only permission to convert three posts of Clerks into Assistants was sought from 1985. This proposal was not approved as discussed hereinabove by the Service Committee in its meeting held on 23rd June, 1989. Moreover, the letter dated 1.2.1975, the foundation for memo dated 16.8.1988, also stood withdrawn on 13th February, 1980. The finding recorded by the Labour Court that the workman is entitled to 77 days salary need not be interfered. 7 Consequently, the writ petition is partly allowed. The award dated 9th March, 2005 passed by the Presiding Judge, Labour Court Shimla is quashed and set aside to the extent whereby the workman has been held entitled to the post of Assistant with effect from 1995, however, the relief granted to the workman to pay him salary for 77 days with effect from 1.4.1996 to 16.9.1996 is upheld. There shall be no order as to costs. ( Rajiv Sharma), Judge April 3, 2008. *Awasthi*