2025:HHC:29050 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 5333 of 2014 Decided on : 27.08.2025 The State of Himachal Pradesh and others. …Petitioners Versus Smt. Mansa Devi. …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the petitioners : Mr. Pushpinder Jaswal, Additional Advocate General and Mr. Rajat Chauhan, Assistant Advocate General. For the respondent : Mr. Vikas Rathore, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioners have assailed Award dated 01.11.2013, passed by learned Labour Court-cum-Industrial Tribunal, Dharamshala, H.P., in terms whereof, the Reference made by the appropriate Government to the learned Labour Court has been answered by the learned Labour Court in the following terms:- “25. As a sequel to my findings on the issues No. 1, 3 and 4 above, the instant claim petition succeeds in part and the same 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29050 is partly allowed. The breaks given by the respondent to the petitioner up-to 31.8.2007 being artificial/fictional are held to be wrong and illegal. She (petitioner) shall be entitled to the seniority and continuity in service from the date of her initial engagement except back wages. The respondent is also directed to consider the case of the petitioner for regularization of her services as per the policies framed by the State Government from time to time. It is made clear that if the services of any person junior to the petitioner have already been regularized, she (petitioner) shall be entitled to the regularization from the date/month of the regularization of the services of her junior(s). Parties to bear their own costs.” 2. Learned Additional Advocate General submitted that the impugned Award is not sustainable in the eyes of law as the learned Labour Court has erred in not appreciating that in the light of the man-days chart, which was there on record as Ex. RW1/C, there was no occasion for the learned Court to hold that fictional breaks were being given to the workmen and that too intentionally, amounting to unfair labour practice. He submitted that said Exhibit clearly demonstrates that in the year 1998, the workman had put in 30 days, in the year 1999, 76 days and so on and so forth and, therefore, it could not have been construed or held by the learned Labour Court that a 3 2025:HHC:29050 person who had worked in a calendar year either for 30 days or 38 days or maximum of 180 days, was being given any fictional break as from the year 1998 to the year 2006. He further submitted that there was no occasion for the learned Labour Court to have had passed the Award in favour of the workman by returning the findings that whereas, juniors to the petitioner/workman were provided work for 240 days, she was discriminated for the reason that this was not the term of the Reference and this extremely important aspect of the matter was overlooked by the learned Labour Court. 3. On the other hand, learned counsel for the respondent-workman submitted that there is no infirmity with the Award, as it stood proved on record that persons engaged after the respondent/workman were regularized by condoning fictional breaks, as was evident from Ex.RW1/D. He also submitted that the respondent was not allowed to complete 240 days in any of the calendar year as up to the year 2006 and this was intentionally done by granting fictional breaks to her. He submitted that persons similarly situated as the respondent, were regularized by condoning the fictional breaks and 4 2025:HHC:29050 respondent, on the other hand, was discriminated against. Accordingly, he prayed that as there is no infirmity in the Award, the present petition be dismissed. 4. I have heard learned Additional Advocate General as well as learned counsel for the respondent and have also carefully gone through the Award as well as other documents appended therewith and record of the learned Labour Court. 5. As already observed hereinabove, the Reference made by the appropriate Government to the learned Labour Court was whether the termination of the services/giving fictional breaks in the services of the claimant from time to time, from the month of November, 1998 up to 31.08.2007 without complying with the provisions of the Industrial Disputes Act, 1947, was legal and justified or not. 6. The claim filed by the claimant before the learned Labour Court was that the claimant was engaged as a Baildar by H.P.PWD in its National Highway Division on 06.10.1998. She was engaged up till 31.08.2007 and the Department gave her fictional breaks. She was given muster roll for 15 days from the initial date of her engagement up to 31.08.2007 though the 5 2025:HHC:29050 work was available for entire month and whereas, fictional breaks were given to her, persons junior to the claimant in the same category were allowed to complete 240 days in each calendar year and services of some of them were also regularized. Department stopped granting fictional breaks with the effect from 01.09.2007 and thereafter the claimant was allowed to complete more than 240 days. In between 06.10.1998 to 31.08.2007, claimant requested respondent so many times to stop giving fictional breaks but this was not heeded to by the Department and in these circumstances, the reliefs as mentioned in the claim petition were prayed for. 7. The claim was resisted by the Employer, inter alia, on the ground that the engagement of the claimant was as per availability of funds and works. Initially, the claimant was engaged by Executive Engineer, National Highway Division, HPPWD, Joginder Nagar, with effect from 01.01.1998 and the Office of Executive Engineer, B&R Division, HPPWD, Joginder Nagar, was created in the year 2004. Thereafter, some of the workmen were transferred to the newly created Division. The claimant earlier to 01.01.2004 was working under Executive 6 2025:HHC:29050 Engineer, National Highway Division, HPPWD and, thereafter, she was working with the said respondent. It was also the stand of the Department that all the workmen mentioned in the claim petition were senior to the claimant and were regularized as per their respective seniority. 8. In terms of the impugned order, the learned Labour Court held that the man-days chart Ex.RW-1/C demonstrated that work for entire month was not provided to the petitioner/workman by the respondent and if the services of the petitioner/workman were engaged for 10 to 20 days only, then why were persons junior to her provided work for 240 days. Learned Labour Court also held that the Department obviously was resorting to favouritism or acting in a partisan manner to deny the status and privileges of permanent workman to the petitioner. It held that the action of the Department in not issuing intentionally the muster roll for the entire month to the petitioner/workman was unfair labour practice and she was to be presumed to be in continuous and uninterrupted service from the initial date of her engagement up to 31.08.2007. 9. This Court is of the considered view that the 7 2025:HHC:29050 findings returned by the learned Labour Court are not sustainable in the eyes of law in the facts of the present case. In terms of Ex.RW1/C, claimant served for 28 days in the year 1998, for 62 days in the year 1999, for 34 days in the year 2000, for 137 days in the year 2001, for 125 days in the year 2002 and 112 days in the year 2003. Thereafter, in terms of the stand of the Department before the learned Labour Court, the claimant was transferred to the other newly created Division and therein, she served for 158 days in the year 2004, for 169 days in the year 2005, for 168 days in the year 2006 and for 231 days in the year 2007. Thereafter, she has been in continuous service and allowed to put in more than 240 days in each calendar year, even as per the averments made in the claim petition. 10. First and foremost, learned Labour Court erred in not appreciating that when it was the own stand of the claimant that as after the year 2007, the Department was permitting her to complete more than 240 days, learned Labour Court ought to have had appreciated that had the act of the Department been discriminatory, then it would not have allowed the claimant to 8 2025:HHC:29050 complete more than 240 days either in the year 2008 or thereafter. It is not as if the Department allowed the claimant to complete more than 240 days in the year 2008 and thereafter on account of some Court order etc. This means that there was some credibility in the contention of the Department that the claimant was being provided work in terms of the availability of the work. 11. Now coming to the issue of certain alleged juniors of the petitioner/workman, being allowed to gain regularization by condoning fictional breaks, a perusal of Annexure RW1/T demonstrates that in terms thereof, 5 incumbents are stated to have been regularized and amongst them, incumbent No.2, Smt. Geeta Devi had consistently put in more than 200 days in the year 2001 and 2002 and thereafter, she had put in more than 300 days in each calendar year. Similarly, Sh. Dilip Singh, had put in 150 days in the year 2002 and thereafter, he had put in more than 300 days in each calendar year. Sh. Gautam Ram had put in 27 days in 2002 and thereafter, more than 300 days in each calendar year. Sh. Bhagmal had put in more than 300 days from the year 2003 onwards and Sh. Chanchal had put in 9 2025:HHC:29050 more than 300 days from the year 2000 onwards. Now obviously as all these incumbents had completed more than 240 days in continuity for at least 8 years, they were regularized on account of this reason. Therefore, the contention of the claimant that these persons though juniors, were similarly situated to the claimant, yet their fictional breaks were condoned, was incorrect. No workmen similarly situated as the claimant, that is to say who had put in as less number of days in a calendar year as the claimant, was regularized by condoning fictional breaks. Learned Labour Court erred in not appreciating this. 12. Furthermore, another thing which has to be appreciated is that the Industrial Dispute was raised by the claimant in the year 2010 i.e. when the Department was regularly engaging her for more than 240 days and there is no explanation as to why the issue of so called fictional breaks was not raised by the claimant actually during the years vis-a- vis which the grievance was raised in the year 2010. In the considered view of this Court, this demonstrates that raising of the Industrial Dispute was nothing but an afterthought. All these 10 2025:HHC:29050 points have been ignored by the learned Labour Court in the course of adjudication of the Reference. This Court is not oblivious to the fact that the Industrial Disputes Act is a benevolent piece of legislation, but then it has to be understood that any misplaced sympathy on the part of the Courts, ultimately in such like situation where the Employer is the State Government, makes a dent into the pocket of the taxpayers i.e. the ordinary citizen of the country. 13. Accordingly, in the light of the above observations, this writ petition is allowed. Award 01.11.2013, passed by learned Labour Court-cum-Industrial Tribunal, Dharamshala, H.P, is quashed and set aside. However, this judgment shall have no bearing on the employment of the respondent. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 27, 2025 (Shivank Thakur)