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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.