R.S.A. No. 2638 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2638 of 2010 (O&M) Date of decision : 30.8.2010 ... State of Haryana and another ................Appellants vs. Leela Wanti .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ajay Gulati, Deputy Advocate General, Haryana for the appellants. ... K.C. Puri, J. CM No. 7953 C of 2010 There is a delay of 38 days in re-filing the present appeal. The same stands condoned on the grounds mentioned in the application. RSA No. 2638 of 2010 This is a regular second appeal directed by the defendant- appellants against the judgment dated 29.1.2010 passed by Sh. Puneesh Jindia, Additional District Judge, Rohtak, vide which the appeal preferred by the defendant-appellants against the judgment dated 26.3.2009 passed by Ms. Payal Mittal, Civil Judge (Junior Division), Rohtak, was dismissed. R.S.A. No. 2638 of 2010 -2- Plaintiff- Smt. Leela Wanti filed a suit for declaration and mandatory injunction to the effect that she is entitled to regularization w.e.f. 1.4.1993 instead of 1.2.1996 alongwith all resultant benefits. It is pleaded that plaintiff was appointed as bearer on daily wages in the year 1986 by the defendants and her work and conduct has remained satisfactory. The Government of Haryana issued instructions in the year 1993 according to which the adhoc/daily wagers/casual workers working with the defendants were to be regularized from 1.4.1993 provided that they have completed 5 years or more service on or before 31.3.1993. It is pleaded that plaintiff fulfills all requisite conditions for the regularization, but defendants regularized her services w.e.f. 1.2.1996 instead of 1.4.1993. On put to notice, joint written statement was filed by the defendants taking preliminary objections that the plaintiff has joined the department on contractual basis on 7.5.1986 and she remained in the job uptill 8.7.1987 and thereafter, her services were dispensed with. She filed a suit in the Labour Court in which order dated 1.10.1992 was passed to reinstate her in service with continuity of service and full back wages. Against the said order, CWP No. 2141 of 1993 was filed and vide order dated 20.3.1997, the order of Labour Court was modified to the extent that plaintiff was entitled to back wages from the date of issuance of demand notice i.e. from 12.12.1988 and not from the termination of her service. The plaintiff had joined her duly in compliance of the order dated 29.10.1992. she has not completed regular service of 5 years, therefore, she is not entitled for regularization of service w.e.f. 1.4.1993. R.S.A. No. 2638 of 2010 -3- Replication was filed. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled for regularization of her service w.e.f. 1.4.1993 with resultant benefit? OPP 2. Whether the plaintiff has estopped from filing the present suit by her own act and conduct? OPP. 3. Whether the suit is not maintainable in the present form?OPD 4. Relief. In order to prove her case, Leela Wanti – plaintiff herself appeared as PW-1 and closed the evidence after tendering certain documents. In rebuttal, defendants examined DW-1 Jagbir Singh, Clerk of the Medical Superintendent, PGIMS, Rohtak and closed the evidence. Learned trial Court after appraisal of the evidence on the file, returned the finding on all the issues in favour of the plaintiff and consequently, decreed the suit of the plaintiff, vide judgment dated 26.3.2009 passed by Ms. Payal Mittal, Civil Judge (Junior Division), Rohtak. Feeling dissatisfied with the above said judgment, the defendant-appellants filed the Ist appeal and the same was dismissed vide judgment dated 29.1.2010 passed by Sh. Puneesh Jindia, Additional District Judge, Rohtak. Still feeling dissatisfied with the judgments dated 26.3.2009 and 29.1.2010, referred to above, the defendant-appellants have R.S.A. No. 2638 of 2010 -4- preferred the present regular second appeal. The defendant-appellants in paragraph No. 6 of the grounds of appeal have mentioned that following substantial questions of law are involved in the present appeal:- i) Whether the judgments dated 26.3.2009 and 29.1.2010 of Learned Courts below suffer from material irregularities and hence, liable to be set aside? ii)Whether the plaintiff -respondent can claim regularization on the basis of instructions dated 27.5.1993 of State Government when she does not fulfill the requirements prescribed? Learned counsel for the appellants has submitted that both the Courts below have misread and misinterpreted the evidence on the file, in as much as, plaintiff has not completed 5 years of her service on or before 31.3.1993. So, her services were not regularized w.e.f. 1.4.1993. The period for which she has not served, cannot be treated as period of duty. I have carefully considered the submissions made by counsel for the appellants and have also gone through the file of the case. So far as the facts of the case are concerned, that are not in dispute. The plaintiff joined the service on 7.5.1986 and her services were terminated on 8.7.1987. The plaintiff knocked the door of the Labour Court and reference made by her was accepted and she was ordered to be reinstated in service vide order dated 1.10.1992 alongwith continuity of service and full back wages. The defendant- appellants filed CWP No. 2141 of 1993, challenging the order dated R.S.A. No. 2638 of 2010 -5- 1.10.1992 and that writ petition was decided on 20.3.1997. The order of Labour Court was modified to the extent that plaintiff was entitled to back wages from the date of issuance of demand notice i.e. from 12.12.1988 and not from the termination of her services. However, it is not disputed that the order of continuity of service of plaintiff was not disturbed by this Court. So, for all intents and purposes, the plaintiff would be deemed to be in service w.e.f. 7.5.1986 and if that date is taken into account, she has admittedly completed 5 years of her service much prior to 31.3.1993. So, both the Courts below have rightly held that plaintiff is entitled to regularization of her service w.e.f. 1.4.1993 instead of 1.2.1996. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. The finding of fact recorded by both the Courts below that plaintiff would be deemed to be in service w.e.f. 7.5.1986, does not call for any interference. Consequently, the appeal is without any merit and the same stands dismissed. All the miscellaneous applications also stand disposed of. ( K.C. Puri ) 30.8.2010 Judge chugh