Full Judgment Text
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PETITIONER:
HIMACHAL PRADESH HOUSING BOARD
Vs.
RESPONDENT:
OM PAL & ORS.
DATE OF JUDGMENT: 01/11/1996
BENCH:
S.C. AGRAWAL, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.C. AGRAWAL, J, :
Delay condoned.
Special leave granted.
These appeal are directed against the judgment of the
Himachal Pradesh Administrative Tribunal (here in after
referred to ‘the Tribunal‘) dated July 31, 1995 in O.A. No.
43 of 1991 and the order dated November 17, 1995 passed by
the Tribunal in Review Petition No. 38 of 1995 filed by the
appellant for review of the order dated July 31, 1995 in
O.A. No. 43 of 1991.
Himachal Pradesh Housing Board (here in after referred
to as ‘the Board‘) has been established under the provisions
of the Himachal Pradesh Housing Board Act, 1972 to organise
and promote the construction of townships, housing colonies,
etc. in the State of Himachal Pradesh. The respondents were
engaged as daily wage labourers on muster roll basis. Their
services were dispensed with by the Assistant Engineer of
the Board on December 1, 1990. Feeling aggrieved by the
termination of their services, the respondents filed O.A.
No. 43 of 1991 before the Tribunal where in it was submitted
that the Board is an "industry" under the U.P. Industrial
Disputes Act, 1947 and that the respondents are "workmen"
under the said Act and that the termination of their
services had been effected without complying with the
requirements of the said Act. It was also submitted that
persons junior to the respondents were still working with
the Board and that construction work is still going on in
and around Una and that the principle of ‘last come first
go‘ has not been followed. By order dated January 1, 1991
the Tribunal passed an interim order directing that the
respondents be reengaged in the same capacity and at the
same place forthwith and they should be directed to report
for duty on or before January 24, 1991 to the Assistant
Engineer of the Board at Una Sub Division. The Board filed a
reply to the said petition of the respondents wherein it was
submitted that the respondents were engaged purely on daily
wage basis and their services had been dispensed with after
completion of work for which they were engaged. It was
denied that the persons junior to the respondents are still
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working with the Board at Una Sub Division and that the work
has not been completed at Una and that the principle of
‘last come first go‘ has not been following by the Board. It
was also submitted that the Tribunal had no jurisdiction to
entertain the application.
By order dated July 31, 1995 the Tribunal disposed of
the said application filed by the respondents whereby of
Board has been directed to consider the case of the
respondents for regularisation on merits in accordance with
the law and in the light of the judgment of this Court in
Mool Raj Upadhyaya v. State of Himachal Pradesh & Ors., 1994
Supp. (2) SCC 316, within a period of six months with
liberty reserved to the respondents to move the Tribunal
application if any of them is still aggrieved. It was also
directed that the respondents who were disengaged and were
subsequently reengaged by the order of the court were
continuously working, the break that occurred in the
meanwhile due to the impugned termination order shall be
taken into consideration for the purpose of counting service
for regularisation but they shall not be paid back wages on
the basis of ‘no work no pay‘. The Board was directed to pay
the respondents the enhanced wages effect from January 1,
1994 as per the judgment of this Court in Mool Raj Upadhyaya
(supra).
The Board filed a petition for review of the said order
dated July 31, 1995. The said petition for review was
dismissed by the Tribunal by order dated November 17, 1995.
Hence this appeal.
We have heard the learned counsel for the parties.
On a perusal of the impugned order dated July 31, 1995
it appears that the Tribunal has finally disposed of O.A.
no. 43 of 1991 filed by the respondents and has given
directions regarding regularisation of the said respondents
without examining the legality of the termination of their
services with effect from December 1, 1990. The question of
regularisation of the respondents of the could arise only,
if the termination of their services with effect from
December 1, 1990 was found to be invalid. The claim of the
respondents in their application before the Tribunal that
the termination of their services was illegal had been
refuted by the Board in its reply. Without holding that the
termination of the services of the respondents with effect
from December 1,1990 was invalid and that the respondents
and that the respondents continued in service, the Tribunal
was in error in giving directions regarding their
regularisation and payment of enhanced wages to the
respondents with effect from January 1, 1994 as per the
judgment of this Court in Mool Raj Upadhyaya (supra). The
impugned judgment dated July 31, 1995 and the order dated
November 17, 1995 cannot, therefore, be upheld and have to
be set aside and O.A. No. 43 of 1991 has to be remitted to
the Tribunal for consideration of the question regarding
validity of the termination of the services of the
respondents with effect from December 1, 1990.
The appeal are, therefore, allowed, the impugned
judgment dated July 31, 1995 and the order dated November
17, 1995 are set aside and O.A. No. 43 of 1991 is remitted
to the Tribunal for consideration on merits. No order as to
costs.