IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 5133 of 2008 Date of decision: 26.11.2010 ________________________________________________________________ Shri Bhup Ram .....Petitioner. Versus State of H.P. and others. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? No. ________________________________________________________________ For the petitioner: Mr. Adarsh Sharma, Advocate vice counsel Mr. Peeyush Verma, Advocate For the respondents: Mr. Anil Jaswal, Deputy Advocate General. V.K. Sharma, J (Oral). The petitioner who was working as daily wage beldar on the establishment of the respondent-department, had met with an accident on 6.11.1996 during the course of his employment with the said respondent and had thereby suffered permanent disability to the extent of 55%. Consequently, the employer which is the State though was expected to be a model employer, acted otherwise and removed the petitioner from the daily wage employment. Being aggrieved by and dissatisfied with, he took the matter to the erstwhile HP State Administrative Tribunal by filing original application (OA) No. 1113 of 1998 on 9.7.1998 which on the abolition of the said Tribunal has been transferred to this court and has been registered as CWP (T) No. 5133 of 2008. 1 Whether reporters of Local Papers may be allowed to see the judgment? No. .....2..... 2. The petition has been filed on the following prayers, vide para 7 (i) to (v):- i) That the orders of retrenchment whereby the applicant has been retrenched from work by the respondent No.4 as per the orders of respondent No.3 may be quashed and set-aside and the applicant be permitted to perform his duties as before on stock storage muster Roll. ii) That the seniority of the applicant may be ordered to be protected and maintained from February, 1992 when he was engaged as beldar for the first time with the I.P.H. Department till 25.6.1998 when he was unlawfully retrenched. iii) That the period from 6.11.1996 to 13.11.1997 in which the applicant remained under treatment be ordered to be treated as on duty period and the applicant held entitled to receive wages for the same. Since the applicant reported for duty on 18.11.1997 and the respondents failed to engage him, hence he has to be treated on duty without any break from February 1992 to date. iv) That the respondents may be ordered to protect the seniority right from February, 1992 to 25.6.1998 and he may be held entitled to get wages for the period from the date of accident i.e. 6.11.1996 till 11.2.1998 because during this period he was unable to attend the duty though he was ready and willing but was prevented due to circumstances beyond his control. v) That the respondents may be ordered to take light duty from the applicant he should not be posted far away from his native place as he became handicapped during the course of employment.” 3. In the reply filed on behalf of the respondents, the following stand has been taken in the preliminary submissions :- “In this connection, it is submitted that the applicant has been engaged on daily paid basis as beldar w.e.f. 1.1.92 and has been engaged on daily paid basis as beldar w.e.f. 1.1.92 and has worked as such with the respondent department continuously till 11/1996. During the course of working on 6.11.96 the applicant met with an accident and referred for treatment to Indira Gandhi Medical College and Hospital Shimla. The .....3..... medical re-imbursement for treatment at Indira Gandhi Medical College and Hospital Shimla had been borne by the Respondent Department and he was paid re- imbursement amounting to Rs. 13189/- vide Vr. No. 8 dated 13.12.96 and Rs. 7299 vide Vr. No. 12(17) dated 19.8.97. Simultaneously a case for compensation was forwarded to the compensation officer Mandi, which has been decided on 16.12.97 granting compensation amounting to Rs. 1,04,124/-. The payment of said compensation has been made to the applicant. As per certificate issued by the Medical authority the applicant has been declared 55% disabled for which compensation by applying relevant factor by the Commissioner Under Workman Compensation Act HPPWD Mandi has been worked out and announced and paid off vide Cheque No. 258596/004792 dated 13.5.98 amount to Rs. 83636 (Rs. 1,04,124-20488 Medical re-imbursement already paid). After discharge from Hospital the applicant approached the Assistant Engineer, I & PH Sub-Division, Churag for re-engagement having 55% disability and the applicant was engaged on humanitarian consideration to provide him subsist livelihood till the decision of compensation. There is no work under the department termed as Light duty. The applicant has been declared 55% disable as explained supra, the amount assessed as compensation for this disability amounting to Rs. 104124/- (Rs. 83636+20488) has been paid by the department to the applicant. The amount paid is sufficient to make livelihood by the applicant and his family members in near future by establishing some business shop etc. Keeping in view the disability of the applicant and amount paid as compensation to the applicant, he is not legally entitled for any kind of engagement. At the same time such light work is not available with the department where the said applicant can be appointed.” 4. On 28.4.2010 the following order was passed by this court in this matter:- “During the course of his employment petitioner suffered permanent disability to the extent of 55%. that the provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the Act) are applicable to the employees of the State cannot be disputed. Section 47 of the Act, which is mandatory restrains the establishment from dispensing with the services of an employee who acquires disability during his service. The Apex Court in Kunal Singh versus Union of India and another, (2003) 4 SCC 524 has clearly held it so. .....4..... 2. The petition was filed in the year 1998. Before some decision is taken on merits it is only desirable that, in the interest of justice, the respondents themselves consider the matter at their level and take a decision with regard to the petitioner's entitlement under the Act. This aspect of the matter has not been considered by the State. The decision be positively taken, at the highest level, within a period of eight weeks from today. List on 12.7.2010. Dasti copy.” 5. In compliance of the above order dated 28.4.2010 an affidavit of Er. A.K. Gupta, Superintending Engineer I & PH Circle, Sundernagar has been filed along with order dated 11.10.2010 Annexure R-A1 of the Government of Himachal Pradesh, Irrigation and Public Health Department which is to the following effect:- “No. IPH-A-E(3)-76/2010 Government of Himachal Pradesh Irrigation & Public Health Department From The Pr. Secretary (IPH) to the Govt. of Himachal Pradesh To The Engin-Chief I & PH Deptt. Shimla-1 Dated Shimla-2 11, October, 2010 Subject: In the matter of CWO(T)5133/08 Bhoop Ram Vs. State of HP. Sir, I am directed to refer to your letter No. IPH (LC)- CWP(T) 5133/08 (Bhoop Ram)2626-29 dated 14.9.2010 on the subject cited above and to say that the above matter was taken up with the Law Department for seeking them advice on the following points: 1. Whether he (Bhoop Ram) should be taken back only on daily wage? Or 2. He should be made a regular employee w.e.f. 2010 onwards or 3. Whether any benefits (financial) or seniority accrue for wrong retrenchment or not allowing .....5..... his joining. 4. Whether benefits of daily wages or regular be given prospectively. On which the Law Department has given their advice as under:- “Since, the propositions No. 1&2 are inter-linked, as such the same are being taken together for tendering the requisite opinion. In this behalf, it is pointed out that it is an admitted fact on record that Sh. Bhoop Ram was a daily waged beldar from 1992 to 6.11.1996 (when he met with an accident in the course of the employment) and it is also an admitted fact that his services were dispensed with and he was not allowed to join duty in November, 1997 after sustaining 55% injury. In the given situation in hand, it is opined that the services of Sh. Bhoop Ram are to be taken back notionally on daily wages bases retrospectively and by giving him consequential benefits of such notional seniority his services are to be regularized retrospectively from such date when he becomes eligible for such regularization. With respect to proposition No.3 it is pointed out that Sh. Bhoop Ram is entitled for the benefit of retrospective consequential seniority only and no financial benefits are to be given to him. So far as proposition No.4 is concerned, in this behalf it is pointed out that the benefits of daily wages or regular are to be given retrospectively only to the extent of seniority thereof so far as actual financial benefits are concerned the same have to be given prospectively from the actual date of joining by fixing it notionally from stage to stage. 3. You are, therefore, requested to take further necessary action in the matter accordingly under intimation to this department. Yours faithfully, Sd/- Under Secretary (IPH) to the Govt. of Himachal Pradesh.” 6. In view of the above decision dated 11.10.2010 Annexure R- A1 of the Government, the petition is disposed of with a direction to .....6..... respondent No.2/the competent authority to implement the same within 30 days from today, failing which the petitioner shall be entitled for back wages to the extent of 30% along with interest @ 6% per annum from the date(s) due. 7. The petition as also pending CMP(s), if any, stand disposed of. 8. Copy Dasti. (V.K. Sharma) Judge 26th November, 2010 (Krn Guleria)