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HEALTH & FAMILY WELFARE DEPARTMENT

NOTIFICATION

Shimla, the 3rd July, 2010

No. HFW-B(A)3-3/85-II (Loose).—In exercise of the powers Conferred under Section-21 of

the Dentists Act,1948 (Act No.16 of 1948), the Governor of Himachal Pradesh is pleased to

constitute the Himachal Pradesh State Dental Council as under :—

Under Section-21(A & B)

Following members have been elected from among themselves by the dentists registered in

Part-A and B.

(i)

Dr.Kamal Jeet Singh S/o Sh.Harnam Singh

Village Adhwani, P.O.Jhaniara, Tehsil & Distt.Hamirpur, H.P.

80&jkti=@2010&20&7&2010

¼2173½

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(ii)

Dr.Aman Chauhan,

Anshul Bhawan Below Tunnel

Sanjauli, Shimla .

(iii)

Dr.Karam Jeet Singh Jaswal,

Sr. Lecturer Department of Periodontics,

HP, Govt. Dental College, Shimla .

(iv)

Dr.Gulab Singh Sharma,

C/o Varun Lodge Cemetary Road,

Sanjauli, Shimla.

(v)

Dr.O.P.Verma,

Village Lohanji Zero Point

Near Dev Raj STD,P.O.Kumharhatti,

Distt.Solan,HP.

Under Section-21(C)

All Heads(i.e. Principals following dental colleges, will be ex-officio member by virtue of

their post:—

(i)

Principal, HP Govt. Dental College, Shimla .

(ii)

Principal Himachal Dental College, Sundernagar .

(iii)

Principal, Bhojia Dental College, Bhud Nalagarh.

(iv)

Principal MNDAV Dental College Tatool Solan, HP.

(v)

Principal Himachal Institute of Dental Societies, Paonta Sahib, Distt.

Sirmaur, HP.

Under Section-21(D)

Member elected from amongst themselves by the member of the Medical Council or

the Council or the Council of Medical Registration of the State as the case may be Members

U/S 21 (d).

(i) Yet to be elected by the Medical Council (separate notification will be issued on receiving

the proposal).

Under Section-21(E)

Members nominated by the State Govt. Members U/s 21(e)

(i)

Dr.Hem Lata Sood, Director Dental Health Services, H.P.

(ii)

Dr.Pradeep Sood, Sr.Dental Surgeon,

Rural Hospital,Solan,H.P.

(iii)

Dr.Vikas Singh Rana,

Sr.Dental Surgeon, Zonal

Hospital Dharamsala,H.P.

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Under Section-(F)

The Chief Medical Officer of the State, by whatever name called ex-officio

(i) Director of Health Services, HP(by virtue of post).

The HP State Dental Council will elect President and Vice President of the Council as per

Section-25 of the Dentist Act,1948 . The term of the office of the members shall be regulated as per

section-27 and regulation of the Dentist Act,1948.

By order,

Sd/-

Principal Secretary.

_______________

IN THE COURT OF JAGMOHAN SINGH MAHANTAN, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, SHIMLA, HP.

Ref no. 59 of 2006.

Instituted on 6.5.2006.

Decided on. 17.2.2010.

Diljan Singh S/o Shri Parmatama Singh R/o Village Chandokha, P.O Shankerpur via Bayara, District Basti

(UP) 272105

. . Petitioner.

Vs.

The Factory Manager, M/s Birla Textile Mills Baddi, Tehsil Nalagarh, District Solan, HP.

. .Respondent.

Reference under Section 10 of the Industrial Disputes Act, 1947.

For petitioner:

Ms. Veena sood, Ld. Csl.

For respondent:

Shri Jagdish Thakur, Ld. Csl.

AWARD

1. The following reference has been received from appropriate government by this Court for adjudication:

“Whether the termination of services of Shri Diljan Singh S/o Shri Parmatama Singh workman by

the Manager M/s Birla Textile Mills Baddi, District Solan HP w.e.f. 16.9.2004 without complying the

provisions of the Industrial disputes Act, 1947 is proper and justified? If not, what relief of service

benefits and amount of compensation the above aggrieved

workman is entitled to?”

The petitioner has filed a claim asserting therein that the petitioner was working in the Spinning

department of respondent wherein he met with an accident which happened during the working hours and the hand of

the petitioner came in the machine resulting its amputation and the petitioner continued to work in the same department

on the same job but the respondent management started harassing the petitioner for one reason or the another and also

issued a false show cause notice and chargesheet regarding giving less production which was replied by the petitioner

and that the respondent management on the basis of the show cause notice and chargesheet conducted an enquiry which

was just an eyewash as the respondent management and the Enquiry Officer did not permit the petitioner to be

represented through his co-worker and no documents, complaints and list of witnesses were supplied to the petitioner

and no copies of enquiry proceedings were supplied. The Enquiry Officer used to entertain statements of the

management witnesses which were already written by the witnesses and did not allow the petitioner to cross examine

them. The petitioner was not allowed to put forth his case and also inspite of the petitioner protest in writing that the

Enquiry Officer be changed as he was hand in gloves with the respondent management but the Enquiry Officer was not

changed and the enquiry was conducted one sided, illegal and utter violation of the principle of natural justice, fair play

and against the certified standing order of the respondent company and that the petitioner was also not given an

opportunity by the Enquiry Officer to bring his witnesses and his evidence was closed and no enquiry report was given

to the petitioner nor second show cause notice was given before terminating the services of the petitioner as the

Enquiry Officer was a biased person, who was singing the tune of respondent and the services of the petitioner have

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been illegally terminated as the petitioner suffered a disability of 50% on account of employment injury due to

amputation of his right hand and the petitioner is unemployed from the date of his illegal termination and is totally

dependent upon his relatives and parents for his livelihood and as such prayed for reinstatement in service with all

consequential benefits, hence this claim.

The respondent resisted and contested the claim of the petitioner which filed reply interalia contending

that the petitioner was served with a letter of chargesheet dated 1.3.2005 by the mill for the major acts of misconducts

committed by the petitioner, who submitted his reply vide letter dated 14.4.2005 which was not found satisfactory and

then domestic enquiry was conducted and the petitioner was informed about the constitution of the enquiry and the

Enquiry Officer with place, date and time of the enquiry which was fixed for 27.4.2005 and the petitioner was also

present and on 28.4.2005, the petitioner requested to be represented by one Shri Daljeet Singh, who was an outsider

and on 29.4.2005 the petitioner stated that he did not wish to bring any representative and the witnesses of the

management were examined and the petitioner was given an opportunity to cross examine the witnesses which the

petitioner requested for time and on 30.4.2005, the petitioner cross examined the management witnesses at length and

on 3.5.2005, the enquiry proceedings were adjourned to 6.5.2005 and further witnesses of management were examined

but the petitioner refused to cross examine them, hence the management closed its evidence before the Enquiry Officer

and the matter was fixed for the evidence of the petitioner and on 10.5.2005, the petitioner having the knowledge of the

said date neither participated in the enquiry nor submitted any information regarding his absence and the matter was

adjourned to 13.5.2005 but the petitioner did not participate in the enquiry and as such the enquiry was conducted

exparte on 16.5.2006 and that the Enquiry Officer submitted his findings and the charges levelled against the petitioner

stand proved and a copy of findings of the Enquiry Officer was given to the petitioner on 30.5.2005 which was received

by the petitioner on 6.6.2005 and that after consideration of enquiry report, the services of the petitioner were

terminated on 22.8.2005 which is just, legal, proper, bonafide and warranted by the circumstances of the case. It is also

contended that the petitioner was given lighter job in which also the norms of production were fixed and the petitioner

could very well have given the requisite production despite his such disablement caused by the accident and the charges

levelled against the petitioner were based on record which have been proved during the course of enquiry and that full

opportunity was afforded to the petitioner to defend himself and as such prayed for the dismissal of the claim.

No rejoinder filed. The following issues were framed by this Court on 17.8.2007 on the pleadings of the

parties:

Whether the services of the petitioner have been illegally terminated by the respondent w.e.f.

16.9.2004 without complying with the provisions of I.D. Act, 1947? If so, its effect?

..OPP

If issue no.1 is proved in affirmative, to what relief, the petitioner is entitled to?

..OPP

Whether a fair enquiry was conducted against the petitioner by the management/respondent? If

so, its effect?

..OPR

Relief.

I have heard the Ld. Counsels for the parties and have gone through the record of the case.

For the reasons to be recorded hereinafter while discussing the issues for determination, my findings on

the aforesaid issues are as under:

Issue No. 1. No.

Issue No. 2. Not entitled to any relief.

Issue No. 3. Yes.

Relief.

Reference answered in negative per operative part of award.

REASONS FOR FINDINGS

Issue No. 1 & 3.

Both these issues are taken up and discussed together being co-related and interconnected for sake of

convenience and to avoid repetition. Coming to these issues, the petitioner has examined himself as PW1, who has

stated that he was initially engaged as liner with the respondent in 1992 and then he worked in Spinning department to

mix cotton where an accident took place during the working hours in 2003 and his right hand was amputated and after

that he joined with the respondent in 2004 and after two months, he was terminated from service on the ground of

giving less production and progress. The respondent had served a notice upon him regarding the less production of

work done by him which was replied by him and since he was handicapped having one hand after the accident and as

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such he was not in a position to give the production as he used to give before the accident and then the enquiry was

conducted against him but no opportunity of being heard was given to him. He took his witnesses before the Enquiry

Officer but they were not examined. He also made an application for change of the Enquiry Officer but in vain and

after conducting the exparte enquiry, removed him from service. He was charge sheeted after one month from his

removal and as such prayed for reinstatement in service with seniority and continuity including back wages.

To rebut the case of the petitioner, the respondent has examined two RWs in all. RW1 Shri R.K Sharma

General Manager has stated that he knows the petitioner, who was the employee/workman of the respondent, who was

charge sheeted on account of negligent in duties, who used to give less production to the respondent, who was charge

sheeted on the basis of report of Shri Ragu Nath Pandit, Supervisor and Kapil Pandit, Manager vide letter Ex. R1 & R2

upon which the warning was conveyed to the petitioner vide letter dated 30.10.2004 and 2.2.2005 Ex. R3 and R4 and

then charge sheet Ex. RA was served upon the petitioner and the petitioner gave his reply vide Ex. RB which was not

found satisfactory and then Shri A.K Sinha was appointed Enquiry Officer vide letter Ex. RC and then the petitioner

was informed by the Enquiry Officer about the next proceeding vide letter Ex. RD and then the Enquiry Officer

appointed Shri Vibhore Gupta as Presenting Officer vide letter Ex. R5.

RW2 Shri A.K Sinha Senior Manager, Personnel and Administration in M/s Birla Textile Ltd. Baddi

District Solan has stated that he has been posted with the respondent since May, 1999. He is well conversant with the

facts of the case and brought the record of the case. He knows the petitioner present in the Court, who was the

workman of the respondent. He was appointed as an Enquiry Officer by the respondent vide Ex. RC for conducting

enquiry against the petitioner. He informed the petitioner vide letter Ex. RD about the enquiry proceedings which was

received by the petitioner in circle red. Shri Vibhore Gupta was appointed as Presenting Officer by the respondent vide

letter Ex. R5. The petitioner made an application on 21.4.2005 Ex. R8 to conduct enquiry during working hours which

was rejected by him on 27.4.2005. On 28.4.2005, the petitioner requested to engage his defence assistant outside the

respondent company which was rejected by him being against the standing orders of the company. The petitioner

attended the proceedings before him till 6.5.2005 and thereafter he did not appear before him on 10.5.2005 despite

having knowledge. On 10.5.2005, he again sent a notice Ex. RF to the petitioner to appear before him on 13.5.2005 but

the petitioner did not turn up on 13.5.2005. Again on 14.5.2005 he sent a letter to the petitioner vide Ex. RG to appear

before him on 16.5.2005 but the petitioner refused to accept service and did not turn up and then the petitioner was

proceeded against exparte and then the enquiry was conducted exparte and the exparte enquiry report is Ex. R11 which

was prepared by him and he submitted the report to the management of respondent and after conducting the enquiry

against the petitioner, he found him guilty and the charges were proved against him. The respondent examined S/Shri

Vibhor Gupta, Kapil Pandit and Raghunath Pandit and their statements Ex. R12 to R14 were recorded by him during

enquiry proceedings. Shri Vibhor Gupta was not cross-examined by the petitioner despite having afforded opportunity

to him whereas Raghunath Pandit was cross examined by the petitioner. Shri Kapil Pandit was not cross examined by

the petitioner as he himself gave the statement that he did not want to cross examine him. The statements of the

witnesses also bear the signature of the petitioner and day to day proceedings of the enquiry is Ex. R15.

10.

Ms. Veena Sood, learned counsel for the petitioner has vehemently argued at the very out set that the

petitioner was victimized by the respondent management being handicapped workman and even no proper and fair

enquiry was conducted against the petitioner and as such the petitioner is liable to be reinstated in service with all

consequential benefits.

11.

On the contrary, Shri Jagdish Thakur, learned counsel for the respondent has controverted the

arguments of Ms. Sood and has submitted that the respondent has proved on record that legal, fair and proper domestic

enquiry was conducted against the petitioner, who was found at fault, who did not work properly during the working

hours, who did not give any progress, who was found negligent in his duties, who used to give less production to the

respondent and the petitioner was allowed to work when he produced the fitness certificate from the doctor after the

accident and even the petitioner is also getting disability pension from ESI regularly and got his free treatment from

ESI and as such it does not lie in the mouth of the petitioner to say that he was victimized by the respondent company.

The petitioner himself did not go on work, who found at fault in the enquiry and the petitioner admitted in his cross

examination that he was properly informed to participate in the enquiry proceedings by the Enquiry Officer but he did

not turn up, hence he was proceeded against exparte in the enquiry proceedings and he was found guilty by the

disciplinary authority. Moreover, from the statement of petitioner as PW1, it is clear that he was properly served to

appear before the Enquiry Officer but the petitioner did not appear before the enquiry Officer, hence the petitioner was

proceeded against exparte and as such he has urged that since the petitioner intentionally avoided the service of notices

and not participated in the enquiry, hence the principle of natural justice deemed to have been followed. To substantiate

his arguments, he has relied upon 2008 LLR 449 S.C case titled as Board of Directors, HPTC and another Vs. K.C

Rahi.

12.

I have considered the respective contentions of both the parties and have scrutinized the record of the

case.

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13.

After the close scrutiny of the record of the case, it remains a fact that the petitioner is a handicapped

having one hand, who is getting regular pension from ESI, who was offered job by the respondent on the production of

the fitness certificate from Doctor but it appears that the petitioner was found negligent in his duties, who did not give

proper production/progress of his work to the respondent management from time to time and then the show cause

notice was issued to him and then domestic enquiry was conducted against him and proper notices for participation in

the enquiry was served upon him but the petitioner did not appear before the Enquiry Officer, who was proceeded

against exparte. It is significant to note that the petitioner has admitted as PW1 that he was served with show cause

notice and the notices were served upon him by the Enquiry Officer from time to time to appear before him and

therefore, it is clear from the record that the petitioner was in the know of the enquiry having been conducted against

him, who willfully absented from the enquiry proceedings for the reasons best known to him. Here I am fortified with a

view taken by their lordships of Hon’ble Supreme Court in 2008 LLR 449 S.C case titled as Board of Directors,

HPTC and another Vs. K.C Rahi in which it was held that:—

“High Court has erred in setting aside the order of the Tribunal interfering with the termination of

respondent who has failed to participate in the enquiry despite that the notice of enquiry was

published in the newspaper, Tribune and the enquiry was proceeded exparte. High Court in its writ

jurisdiction cannot reappraise the evidence recorded by the Court of first instance.

“ When the delinquent employee has avoided to receive the notice and failed to participate in the

enquiry despite publication in the newspaper, he cannot allege violation of principle of natural

justice since ignorance of law is no excuse much less by a person who is a law graduate himself.”

It was further held in 2008 LLR 715 SC in case titled as Chairman and MD VSP and others Vs. Goparaju

Sri Prabhakara Hari Babu in which it was held that:—

“Where an employee failed to participate in the enquiry despite opportunity cannot complain about

violation of principle of natural justice.”

Similarly in 2008 LLR 432 incase titled as Employers Management west Bokaro Colliery of TISCO Ltd. Vs.

Concerned workman, Ram Parvesh Singh in which it was held that:—

“In the absence of challenge to the legality of fairness of the domestic enquiry, the Court should be

reluctant to either interfere with the finding recorded by the Enquiry Officer or the punishment

awarded by the punishing authority hence the order of dismissal of the workman is restored.”

“The standard of proof in disciplinary proceedings and criminal trial is entirely different since in the

former, even the preponderance of possibilities are enough whereas in the latter, the proof should be

beyond reasonal doubt.”

In the instant case, the petitioner was afforded sufficient opportunities to defend his case and to participate in

the enquiry proceedings but despite notices, the petitioner did not turn up on 21.4.2005, subsequently on 27.4.2005, the

petitioner appeared before the Enquiry Officer, who did not accept the allegations leveled against him and claimed trial

and thus the enquiry was fixed for 28.4.2005 when the petitioner also appeared and filed an application for appointment

of one Shri Daljeet Singh as his defence assistant, who was told that he could only appoint his co-worker and Daljeet

Singh was outsider, hence his request could not be accepted and Shri Vibhore Gupta, Presenting Officer of the

company made a request to record the statement of witnesses and to produce other record and the case was fixed for

29.4.2005. On 29.4.2005, both the parties appeared and the statement of PW Raghunath Pandit was recorded and the

petitioner was asked to cross examine him but the petitioner requested for adjournment and then the enquiry was

adjourned for 30.4.2005 by the Enquiry Officer. On 30.4.2005, the petitioner cross examined Raghunath Pandit and the

enquiry was fixed for 3.5.2005 for remaining evidence of company. On 3.5.2005 both the parties appeared and the

petitioner requested for adjournment due to urgent work which was allowed and the enquiry was adjourned for

6.5.2005. On 6.5.2005 both the parties appeared and the statement of Kapil Pandit was recorded but the petitioner

refused to cross examine him and then the evidence of the company was closed and the enquiry was fixed for petitioner

evidence for 10.5.2005 but on 10.5.2005 the petitioner did not appear despite knowledge nor any information was sent

and then the enquiry was adjourned for 13.5.2005 and the petitioner was informed through Security Guard about the

next date of hearing but the petitioner refused to accept the notice and then again the enquiry was adjourned for

16.5.2005 and the notice was given through Security Guard but the petitioner refused the same after reading it and then

the notice was pasted on the factory gate and also on the notice board and since the petitioner intentionally avoided the

services of the notices, hence proceeded against exparte by the Enquiry Officer on 10.5.2005. I have scrutinized the

record of the case and observed that the petitioner was rightly and fairly proceeded against exparte by the Enquiry

Officer after affording full opportunities to appear and participate in the enquiry time and again and therefore it does

not lie in the mouth of the petitioner to say that there is a violation of principle of natural justice, who himself did not

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participate in the enquiry despite affixation of notices on the factory gate and on the notice board of the respondent

company and despite havingfull knowledge of the enquiry proceedings conducted against him on the appointed place,

date and time.

14.

Thus, having regard to the entire evidence on record, I am of the firm opinion that a fair and proper

enquiry was conducted by the respondent management against the petitioner, who was found at default after conducting

the enquiry, who was rightly removed from service by the respondent company after affording full opportunities of

being heard to him and the petitioner cannot take advantage of the fact that he being the handicapped is victimized by

the company especially when he is not giving any progress to the company being the workman of the company and as

such the services of the petitioner have been legally terminated by the respondent company w.e.f. 16.9.2004.

Accordingly, both these issues are decided in favour of the respondent and against the petitioner.

Issue No. 2.

15.

Since I have held under issue no.1 & 3 above that the services of the petitioner have been legally

terminated by the respondent after conducting proper and fair domestic enquiry, hence the petitioner is not entitled to

any relief. Accordingly, issue no. 2 is decided in favour of the respondent and against the petitioner.

RELIEF

As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the petitioner fails and is

hereby dismissed as a result of which the reference is ordered to be answered in negative. Let a copy of this award be

sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records.

Announced in the open court today on this day of 17th Feb. 2010 in the presence of parties counsels.

J. S. MAHANTAN,

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

___________

App.33(A)179/2002

11.1.2010

Sh. O.P.thakur & others V/s M.D.of M&C Fed, Ltd.

11.1.2010

Present : Petitioner with Shri J.L. Sharma ,Ld. Csl for applicant.

Sh Sandeep Mahajan, Ld Csl for respondent.

Heard. No PWs present . At this stage, learned counsel for petitioner submit at the bar that the petitioner does

not want tp persue this case. Let the statement of Shri Deep ram, joint Secretary of the Super Bazar workers union be

recorded on oath.

Statement recorded separately. I am satisfied that the petitioner Deep Ram is the Joint Secy, of the super Bazar

workers union and as such is competent to make this statement, who has stated that they do not want to persue this case

further in the interest of the union and to maintain good and cordial relations with the respondents. Accordingly, the

applicant under section 33a of the Industrial Disputes Act,1947 is dismissed as withdrawn, File , after completion, be

consigned to records.

Announced

11.1.2010

Presiding Judge,

Labour Court, Shimla.

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IN THE COURT OF JAGMOHAN SINGH MAHANTAN, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA.

Ref no. 1 of 2008.

Instituted on. 7.1.2008.

Decided on. 8.3.2010.

Laxmi Devi D/o Shri Kanshi Ram R/o House no. 4142/15, Balmiki Basti, Nahan District Sirmour, HP.

…Petitioner.

Vs.

The Executive Engineer, HPSEB Division Nahan, District Sirmour, HP.

. . Respondent.

Reference under Section 10 of the Industrial Disputes Act, 1947.

For petitioner:

Shri Anil Kumar God, Ld. Csl.

For respondent: Shri Chandan Goel, Ld. Csl.

AWARD

The following reference has been received from appropriate government by this court for adjudication:

“Whether the termination of services of Km. Laxmi Devi D/o Shri Kanshi Ram ex part time sweeper

by the Executive Engineer, HPSEB Division Nahan, District Sirmour, HP w.e.f. May, 1997 without

complying the provisions of Industrial Disputes Act, 1947 is proper and justified? If not, what relief

of service benefits and amount of compensation the above aggrieved workman is entitled to?”

The petitioner has filed a statement of claim asserting therein that the petitioner was initially engaged

under the respondent as part time sweeper in the month of December, 1990 till 12.5.1997 on a fixed wages of Rs. 130/-

per month and the petitioner has been completed 240 days in each calendar year preceding her termination and that the

respondent dispensed with the services of the petitioner without following the procedure as laid by law and the

petitioner has been in continuous service under the respondent as per the provisions of section 25B of the Industrial

Disputes Act, 1947 and that no notice nor retrenchment compensation was paid to the petitioner and even after the

illegal retrenchment of the petitioner, the respondent engaged fresh hands into the employment which is the clear

violation of section 25F, 2G & 25H of the Industrial Disputes Act, 1947 and that the disengagement of the petitioner is

also in violation of rules of standing orders framed by the respondent and that after the illegal disengagement, the

petitioner met with the authorities of the respondent for her reengagement but to no avail and as such prayed for

reinstatement with all consequential benefits, hence this claim duly supported by an affidavit.

The respondent resisted and contested the claim of the petitioner, which filed reply interalia raising

preliminary objections of maintainability, having time barred and suppression of material facts. On merits, it is

admitted that the petitioner worked as part time sweeper from Jan. 1991 to May, 1997, who was engaged on the daily

wages of Rs. 4.30 per hour per day, who used to work for one hour in the morning. It is denied that the petitioner had

worked for 240 days in each calendar year and even the petitioner was duly informed vide letter dated 12.5.1997 that

her services would be terminated from 12.5.1997 and that no notice under section 25F of the Industrial Disputes Act,

1947 was required to be served upon the petitioner as she was on temporary basis. It is also denied that the petitioner

met any official for her reengagement and as such prayed for the dismissal of claim.

In the rejoinder, the petitioner controverted the assertions made in the reply and reaffirmed and

reiterated the averments of the petition.

The following issues were framed by this court on 14.5.2009 on the pleadings of the parties.

1. Whether the termination of services of Laxmi Devi ex part time sweeperess by the Executive

Engineer, HPSEB Nahan w.e.f. May, 1997 without complying with the provisions of Industrial

Disputes Act, 1947 is improper and unjustified as alleged?

…OPP.

2. If issue no.1 is proved, to what relief of service benefits and amount of compensation the petitioner

is entitled to?

…OPP.

3. Whether the petition is not maintainable as alleged?

…OPR..

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2181

4. Whether the petition is hopelessly time barred?

…OPR..

5. Relief.

I have heard the Ld. Counsels for the parties and have gone through the record of the case.

For the reasons to be recorded hereinafter while discussing the issues for determination, my findings on

the aforesaid issues are as under:

Issue No. 1 Yes.

Issue No. 2 Entitled to reinstatement with seniority and continuity but without back wages.

Issue No. 3 No.

Issue No. 4 No.

Relief.

Reference answered in affirmative per operative part of award.

REASONS FOR FINDINGS

Issues 1.

Coming to this issue, the petitioner stepped into the witness box as PW1, who has sated that she was

engaged as sweepress by the respondent in December, 1990 to May, 1997, who had worked with the respondent offices

at Pakka Johar, Mall Road, Naya Bazar and Mehalat Office, Nahan. No notice nor compensation was given to her at the

time of her removal. Her juniors are still continuing with the respondent, who are made regular but she does not know

their names. She used to work throughout the day during her services. She had completed 240 working days in every

calendar year preceding her termination and as such prayed for reinstatement in service with all consequential benefits.

To rebut the case of the petitioner, the respondent has examined Er. I.P Singh, Assistant Engineer,

HPSEB Electrical Sub Division No.2 Nahan as RW1, who has stated that the petitioner was engaged as daily wages

sweepress in Jan. 1991, who continued as such till May, 1997, who used to work for one hour daily @ 4.30 per hour

and proved the mandays chart of the petitioner Ex. RA. The petitioner also filed an O.A before the Administrative

Tribunal which was dismissed for want of jurisdiction, the copy of which is Ex. RB. The petitioner had never

completed 240 working days in any calendar year preceding her termination and even notice Ex. RC was served upon

the petitioner.

10.

Shri Anil God, Ld. Counsel for the petitioner has vehemently argued at the very outset that the

petitioner had completed 240 working days in twelve calendar months preceding her termination and her juniors are

still continuing with the respondent and are made regular by the respondent whereas the petitioner was removed from

service without following the provisions of section 25F, 25G & H of the Industrial Disputes Act, 1947, hence the

petitioner is liable to be reinstated in service with all consequential benefits.

11.

On the contrary, Shri Chandan Goel, Ld. Counsel for respondent has controverted the arguments of Shri

God and has submitted that the petitioner was rightly removed from service after giving notice Ex. RC, who was

engaged as part time sweepress and not on daily wager, hence the petitioner is not entitled to any relief as prayed by

her.

12.

I have considered the respective contentions of both the parties and have scrutinized the record of the

case.

13.

After the close scrutiny of the record of the case, it remain a fact that the petitioner was engaged as part

time sweepress by the respondent, who worked with the respondent w.e.f. 1991 to May, 1997 as is evident from the

mandays chart of the petitioner Ex. RA placed on record. No doubt, the respondent has tried to establish on record that

the petitioner was engaged on part time basis only for one hour in a day, hence no notice under section 25F is required

to be given to the petitioner at the time of her termination. I find no force in this contention as it was held by the

Hon’ble Supreme Court incase titled as DIV. MANAGER, NEW INDIA ASSURANCE CO. LTD. VERSUS A.

SANKARALINGAM in which it was held that:

“Workman - Termination - Continuous service -Part-time workman - Would be covered within the

definition in section 2(s) of the Act -Entitled to benefit of continuous service u/s25B and benefit of

section 25F of the Act.”

14.

In the instant case, no notice nor any compensation was paid to the petitioner at the time of her

termination and even no opportunity of being heard was afforded to the petitioner before her termination which is

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illegal and contrary to the provisions of section 25F of the Industrial Disputes Act, 1947. I have also observed from the

mandays chart Ex. RA that the petitioner had put in 122 hours from 1/97 to 5/97 which means that she has completed

122 days in the year 1997 even if she had worked one hour a day. I have scrutinized the mandays chart Ex. RA and

observed that the petitioner had put in 336 hours in twelve calendar months preceding her termination w.e.f. 5/96 to

5/97 which means that she had completed 336 working days even if she had put in one hour a day and therefore the

petitioner has fulfilled the basic requirement and protection of section 25F of the Industrial Disputes Act, 1947 as no

notice nor compensation was paid to the petitioner at the time of her retrenchment which is not disputed by the

respondent.

15.

Thus, having regard to the above cited ruling and in view of the entire evidence on record, I have no

hesitation in coming to the conclusion that the termination of services of the petitioner as part time sweepress by the

respondent without complying the provisions of Industrial Disputes Act, 1947 is illegal and unjustified. Accordingly,

issue no.1 is decided in favour of petitioner and against the respondent.

Issue No. 2.

16.

Since I have held under issue No. 1 above that the services of the petitioner have been illegally

terminated by the respondent without complying the provisions of Industrial Disputes Act, 1947, hence the petitioner is

held entitled to be reinstated in service alongwith seniority and continuity. However the petitioner is not entitled to

back wages as she has not placed any material on record to substantiate that she was not gainfully employed after her

termination. Accordingly, issue no.2 is decided in favour of the petitioner and against the respondent.

Issue No. 3

17.

In support of this issue, no evidence was led by the respondents nor it was pointed out during the course

of arguments. However, I find nothing wrong with this petition which is perfectly maintainable in the present form.

Accordingly, issue no.3 is decided in favour of the petitioner and against the respondent.

Issue No. 4.

18.

In support of this issue, no evidence was led by the respondent. However, I have scrutinized the record

of the case and observed that there is no limitation under the Industrial Disputes Act, 1947 as it was held by their

lordship of Hon’ble Supreme Court reported in (1999) 6 SCC 82 case titled as Ajayab singh Vs. Sirhind Co-operative

Marketing –cum- processingService Society Limited and Another. In which it was held that:—

“The provisions of Article 137 of LimitationAct, 1963 are not applicable to the proceeding under the

ID Act. The relief under the ID Act cannot be denied merely on the ground of delay. The plea of

delay if raised by the employer is required to be proved as a matter of fact by showing the real

prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be

generally questioned on the ground of delay alone”

Accordingly, on the strength of this ruling, it can safely be concluded that there is no limitation under the

Industrial Disputes Act, 1947 and as such this issue is decided in favour of the petitioner and against the respondent.

RELIEF

As a sequel to my above discussion and findings on issues no.1 to 4, the claim of the petitioner succeeds and is

hereby allowed and the petitioner is ordered to be reinstated in service forthwith alongwith seniority and continuity.

However the petitioner is not entitled to back wages as she has not placed any material on record to substantiate that

she was not gainfully employed after her termination as a result of which the reference is ordered to be answered

accordingly. Let a copy of this award be sent to the appropriate government for publication in the official gazette. File,

after completion, be consigned to records.

Announced in the open court today on this day of 8th March, 2010 in the presence of parties counsels.

JAGMOHAN SINGH MAHANTAN,

Presiding Judge,

Labour Court, Shimla.

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Ref. 27/2008

SH AMRISH SACHDEVA V/S M.D.M/S GOYAL MOTORS LTD, TARA DEVI SHIMLA.

3.3.2010:

Present: Petitioner with Shri R.K.Khidta. Ld Csl for petitioner.

Sh Rahul Mahajan, Ld . Csl .for respondent.

Heard. During the course of conciliation proceedings, the respondent counsel has delivered a cheque of Rs.

12,500/-(Twelve thousand Fie Hundred only) as rs. 500/- in case in favour of the petitioner which has been accepted by

Shri R. K. Khidtta, Ld. Counsel for petitioner Let the statement of Shri R.K.Khidtaa Ld. Csl for petitioner be recorded.

Statement of Shri R.K.Khidta, Ld csl for petitioner.

Stated that I have received a cheque of rs.12,500/-(Twelve Thousand Five Hundred only) and Rs.500/- in case

i.e. Rs.13,000/-

(Thirteen Thousand only) in toto on behalf of the petitioner being the full & Final settlement of his claim and

as such the claim of the petitioner may be disposed of as satisfied.

R.O.&A.C

Presiding Judge,

Labour Court, Shimla.

Statement recorded separately. I am satisfied that the parties have arrived at a lawful compromise without any

extraneous influence upon him and as such the claim of the petitioner is dismissed as satisfied as a result of which the

reference is ordered to be answered accordingly. Let a copy of this award be sent to the appropriate government for

publication in official gazette. File, after completion, be consigned to records.

Announced

3.3.2010

Presiding Judge,

Labour Court,Shimla.

____________

Ref. 49/2007

SHRI RAJ KUMAR V/S M.D.M/S CYBER PHARMA PVT,LTD BADDI.

16.3.2010

Present: Petitioner in person.

Shri Rakesh Sharma, Ld AR for respondent.

Heard. At this stage, petitioner submit before the court that he has already compromised the matter with the

respondent after having accepted a sum of Rs.3,917/- after tendering his resignation and he is already employed in

some other company. Let the statement of petitioner be recorded on oath.

Statement recorded separately. In view of his statement, I am satisfied that the parties have arrived at a lawful

compromise and the petitioner tendered his resignation after receiving a sum of Rs.3,917/- being full and final

settlement of his claim and as such the claim of the petitioner is dismissed as compromised as a result of which the

reference is ordered to be answered accordingly. Let a copy of this award be sent to the appropriate government for

publication in official gazette, File, after completion be consigned to records.

Announced

16.3.2010

Presiding Judge,

Labour Court, Shimla.

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IN THE COURT OF JAGMOHAN SINGH MAHANTAN, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA

Ref no. 54 of 2006.

Instituted on. 7.4.2006.

Decided on. 3.3.2010.

Om Parkash S/o Shri Nokh Ram R/o Village Durgapur, Tehsil Sunni, District Shimla, HP.

…Petitioner.

Vs.

The Managing Director, HP Tourism Development Corporation, Shimla 171001.

The Manager, Hotel Golf Galed, Naldehra, Tehsil & District Shimla HP.

. . Respondents.

Reference under Section 10 of the Industrial Disputes Act, 1947.

For petitioner:

Shri J.R Sharma, Ld. Csl.

For respondent: Ms. Asha Vaid, Ld. Csl.

AWARD

The following reference has been received from appropriate government by this court for adjudication:

“Whether the termination of services of Shri Om Parkash S/o Shri Nokh Ram workman by the (1)

Managing Director, HP Tourism Development Corporation, Shimla 171001 (2) the Manager, Hotel

Golf Galed, Naldehra, Tehsil & District Shimla HP. w.e.f. 1.10.1998 without complying the

provisions of the Industrial Disputes Act, 1947 whereas junior to him are retained as alleged by the

workman is proper and justified? If not, what relief of service benefits and amount of compensation

the above aggrieved workman is entitled to?”

The petitioner has filed a statement of claim asserting therein that the petitioner was initially appointed

as utility worker on daily wages basis on 26th May, 1994 at Hotel Golf Galed, Naldehra, who worked till June, 1999

and then the petitioner was orally terminated from service w.e.f. 1.7.1999 without assigning any cogent reasons and

without paying retrenchment compensation and even the principle of last come first go under section 25G & 25H of the

Industrial Disputes Act was not followed by the respondent and that the petitioner had completed 240 days in preceding

calendar year from the date of his ermination and that the petitioner has unblemished record of his service, who never

gave an opportunity of complaint and that the petitioner made several requests seeking reemployment by visiting the

office of the respondent number of times but to no avail and even the juniors S/Shri Raghubir Singh Jagar Ram, Kamal

Narayan and Smt. Krishna Devi are still continuing with the respondent and that the respondent never charge sheeted

the petitioner before the termination and that no seniority of the workmen was maintained by the respondent and that

there was no occasion for the petitioner to leave his job when he was in dire need of job, the respondent has cooked up

a false story so as to defeat the legitimate claim of the petitioner and as such prayed for reinstatement in service with

retrospective effect with all consequential benefits, hence this claim duly supported by an affidavit.

The respondents resisted and contested the claim of the petitioner, which filed reply interalia raising

preliminary objection of maintainability. On merits, it is contended that the petitioner was initially engaged as a utility

worker on part time basis at Hotel Golf Glade, Naldehra in the year 1994, who was appointed on contract basis, hence

the wrongful termination of services of the petitioner does not arise at all, who worked for four days in 1994, 49 days in

1996 and 181 days in 1998. It is denied that the petitioner had completed 240 days in each calendar year and that the

services of the petitioner was only contractual, hence his services would automatically stand terminated and that the

petitioner is not entitled to any retrenchment compensation on account of service rendered by the petitioner. It is further

denied that the respondents recruited fresh hands into the employment and that the provisions of Industrial Disputes

Act, 1947 are not applicable to the facts and circumstances of the case and as such prayed for the dismissal of the claim

and the reply is supported by an affidavit.

In the rejoinder, the petitioner controverted the assertions made in the reply and reaffirmed and

reiterated the averments of the petition.

The following issues were framed by this court on 27.12.2007 on the pleadings of the parties.

Whether the services of the petitioner have been illegally terminated by the respondents w.e.f.

1.10.1998 without complying with the provisions of I.D Act, 1947? If so, its effect?

…OPP.

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If issue no.1 is proved in affirmative, to what relief the petitioner is entitled to?

…OPP.

Whether the present claim is not maintainable? If so, its effect?

…OPR..

Relief.

I have heard the Ld. Counsels for the parties and have gone through the record of the case.

For the reasons to be recorded hereinafter while discussing the issues for determination, my findings on

the aforesaid issues are as under:

Issue No. 1 Yes.

Issue No. 2 Entitled to reinstatement with seniority and continuity but without back wages.

Issue No. 3 No.

Relief.

Reference answered in affirmative per operative part of award.

REASONS FOR FINDINGS

Issues 1.

Coming to this issue, the petitioner stepped into the witness box as PW1, who has stated that he was

engaged as helper on daily wages with the respondent w.e.f. 26.5.1994 and continued as such till 1st July, 1999 and

then he was terminated from service without any notice and without payment of compensation, who had worked for

more than 240 working days with the respondent in every calendar year preceding his termination.

He had also worked with the President of India, who happened to visit Shimla from 16th June to 1^st July, 1994

and his Section Officer has given him an appreciation letter mark A. His juniors Raghuvir Singh and Jagat Ram are still

working with the respondent and as such prayed for reinstatement in service with all consequential benefits including

back wages.

To rebut the case of the petitioner, the respondent has examined Shri Roop Chand Banot, Senior

Manager, HPTDC, Kufri, Shimla as RW1, who has stated that he is authorized to make the statement vide Ex. RA. The

petitioner was engaged as Masalchi/utility worker on 26.5.1994, who continued as such till 31.5.1994 at Golf Glade

Naldehra and then the petitioner was reengaged in May, 1995 for 20 days and then from 15.6.1995 to 30.6.1995 for 36

days and then the petitioner was again engaged from 28.5.1996 to 31.5.1996 for four days and then from 1.6.1996 to

30.6.1996 for 30 days and then from 1.7.1996 to 15.7.1996 and as such the petitioner worked for 49 days in the year

1996 subject to the availability of work. The petitioner did not work even for a single day in the year 1997, who was

reengaged from 23.4.1998 to 31.10.1998 with breaks and as such worked for 181 days in the year 1998. The petitioner

had not completed 240 working days in any calendar year preceding his termination, who was engaged only for

temporary work subject to availability of work from time to time. The petitioner was never terminated from service as

they hired the services of the petitioner on contract basis and proved the agreements Ex. RB1 and Ex. RB2 and also

proved the muster rolls of the petitioner Ex. RC1 to Ex. RC13 and as such the claim of the petitioner is false.

10.

Shri J.R Sharma, Ld. Counsel for the petitioner vehemently argued at the very outset that though the

petitioner could not prove on record that he had completed 240 working days in twelve calendar months preceding his

termination but the petitioner has proved on record that his juniors Jagat Ram and Raghuvir Singh are still continuing

with the respondents and are made regular by the respondents whereas the petitioner was removed from service without

following the provisions of section 25F, 25G & H of the Industrial disputes Act, 1947, hence the petitioner is liable to

be reinstated in service with all consequential benefits.

11.

On the contrary, Shri G.S Bagga, Ld. Vice Counsel for respondents has controverted the arguments of

Shri Sharma and has submitted that the petitioner has failed to prove on record that he has completed 240 working days

in twelve calendar year preceding his termination and even the petitioner has also failed to prove on record that when

his so called juniors Jagat Ram and Raghuvir Singh joined with the respondents nor placed any document to prove the

same and as such he has urged that in the present set of evidence, the claim of the petitioner is liable to be dismissed.

12.

I have considered the respective contentions of both the parties and have scrutinized the record of the

case.

13.

After the close scrutiny of the record of the case, it is clear that the petitioner had worked with the

respondents as masalchi/utility worker w.e.f. 26.5.1994 to 31.10.1998 as is evident from the statement of RW1 Shri

Roop Chand Banot, who has categorically stated on oath that the petitioner had worked with the respondents as

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masalchi/utility worker from 26.5.1994 to 31.10.1998 with breaks on contract basis. Thus, it is clear from the record

that the petitioner had not worked for 240 working days with the respondents preceding his termination, hence no

protection can be granted to the petitioner under section 25F of the Industrial Disputes Act, 1947.

14.

Now, adverting to the other aspect to the case, the petitioner has proved on record that his juniors S/Shri

Jagat Ram and Raghuvir Singh are still continuing with the respondent, who were engaged in the year 1996-97 as

masalchi/utility worker whereas the petitioner was engaged as masalchi/utility worker on 26.5.1994 which fact has also

been admitted by RW1 Shri Roop Chand Banot in his cross examination that S/Shri Jagat Ram and Raghuvir were

engaged by the department as Masalchi/utility worker in 1996-97, who are now made regular by the respondent and

obviously therefore it is proved on record that S/Shri Jagat Ram and Raghuvir are juniors to the petitioner, who are still

continuing with the respondents and the services of the petitioner were terminated illegally and his termination is bad in

utter violation of provisions of sections 25G & 25H of Industrial Disputes Act, 1947. Here I am fortified with a view

taken by their lordships of Hon’ble Supreme Court incase titled as State of Haryana Vs. Dilbag Singh reported in

2007 LLR 72 SC in which it was held that :

“Where Labour Court found that person junior to respondent was still working and thus there was breach

of section 25G & 25H of the Act. Court directed reinstatement with 50% back wages.”

Similarly, our own Hon’ble High Court of HP has held incase titled as State of HP & Others V/s Bhatag Ram

& Anr. as reported in latest HLJ 2007 (HP) 903. in which it was held that :—

“Continuing of 240 days not necessary in 12 calendar months. It is not necessary to workman to complete

240 days during 12 months for taking the benefits of section 25G & 25H of the Act.”

Thus, on the strength of the above cited rulings and in view of the entire evidence on record, I have no

hesitation in coming to the conclusion that the services of the petitioner were illegally terminated by the respondents

without complying the provisions of Industrial Disputes Act, 1947 by retaining the juniors to the petitioner in the job,

who are still continuing with the respondents and are made regular by ignoring the petitioner for the reasons best

known to it. Accordingly, issue no.1 is decided in favour of petitioner and against the respondents.

Issue No. 2.

15.

Since I have held under issue No. 1 above that the services of the petitioner have been illegally

terminated by the respondents without complying the provisions of Industrial Disputes Act, 1947, hence the petitioner

is held entitled to be reinstated in service alongwith seniority and continuity. However the petitioner is not entitled to

back wages as he has not placed any material on record to substantiate that he was not gainfully employed after his

termination. Accordingly, issue no.2 is decided in favour of the petitioner and against the respondents.

Issue No. 3

16.

In support of this issue, no evidence was led by the respondents nor it was pointed out during the course

of arguments. However, I find nothing wrong with this petition which is perfectly maintainable in the present form.

Accordingly, issue no.3 is decided in favour of the petitioner and against the respondents.

RELIEF

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the petitioner succeeds and is

hereby allowed and the petitioner is ordered to be reinstated in service alongwith seniority and continuity. However the

petitioner is not entitled to back wages as he has not placed any material on record to substantiate that he was not

gainfully employed after his termination as a result of which the reference is ordered to be answered accordingly. Let a

copy of this award be sent to the appropriate government for publication in the official gazette. File, after completion,

be consigned to records.

Announced in the open court today on this day of 3rd March, 2010 in the presence of parties counsels.

JAGMOHAN SINGH MAHANTAN,

Presiding Judge,

Labour Court, Shimla

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Ref. 61/2006

SH SURINDER SINGH V/S MANAGER M/S PRAGATI PAPER INDUSTRIAL KALA AMB DISTT SIRMOUR

16.3.2010:

Present: None for petitioner.

Ms. Veena Sood, Ld.Vice Csl for respondent.

No PWs present nor any steps taken. I am satisfied that sufficient opportunities have been afforded to the

petitioner to produce his evidence but to no avail, hence the evidence of the petitioner closed by the order of the Court.

Arguments heard. Heard. Since the petitioner has failed to produce any evidence to show that the action of the

respondent to terminate the service of the petitioner w.e.f. 28.6.2004 after compliance of section 25F of the Industrial

Disputes Act,1947 is improper and unjustified and as such I have no alternate but to hold that the action of the

respondent to terminate the services of the petitioner w.e.f. 28.6.2004 after compliance of section 25F of the Industrial

Dispute Act, 1947 is proper and justified, hence the petitioner is not entitled to any service benefits and amount of

compensation in any manner whatsoever and further more there is nothing on record which could show that the claim

of the petitioner is not maintainable by his own act, deed, conduct and acquicense and as such all the issues are decided

in negative and as such the claim of the petitioner is dismissed for want of evidence and the reference is ordered to be

answered accordingly. Let a copy of this order be sent to the appropriate government for publication in official gazette.

File, after completion, be consigned to records.

Announced

16.3.2010

Presiding Judge,

Labour Court, Shimla.

___________

IN THE COURT OF JAGMOHAN SINGH MAHANTAN, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA CAMP AT NALAGARH

Ref no. 70 of 2003.

Instituted on. 27.2.2003.

Decided on. 19.3.2010.

Shubhender Parsad S/o Shri Satya Dev Labh C/o Shri Alit Kumar (Shop-keeper) Village Judi Khurd, P.O

Baddi, District Solan, Himachal Pradesh

…Petitioner.

Vs.

The Factory Manager, M/s Deepak Spinners Ltd. Baddi, District Solan, HP.

…Respondent.

Reference under Section 10 of the Industrial Disputes Act, 1947.

For petitioner: Shri O.P Sharma, Ld. Csl.

For respondent: Shri Jagdish Thakur, Ld. Csl.

AWARD

The following reference has been received from appropriate government by this court for adjudication:

“Whether the termination of services of Shri Shubhender Parsad S/o Shri Satya Dev labh by M/s Deepak

Spinners Ltd. Baddi, DistrictSolan, HP w.e.f. 21.9.2001 without complying with the provisions of sections

25F, 25G and 25H of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service

benefits, the above workman is entitled to?”

The petitioner has filed a statement of claim asserting therein that the petitioner was appointed as typist-

cum-clerk in the respondent factory on 15.1.1988 and worked continuously with the respondent till 21.9.2001 and then

the services of the petitioner were terminated illegally without compliance of the mandatory provisions of sections 25F,

25N, 25G and 25H of the Industrial Disputes Act, 1947 and that the petitioner worked with the respondent honestly,

efficiently and to the best of his ability and that the respondent had not served any charge sheet nor any domestic

enquiry was held against the petitioner and even no notice nor any compensation was paid to the petitioner at the time

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of his termination and junior to the petitioner are still working and the respondent has not followed the procedure as per

labour laws and that the termination of the petitioner is illegal, unlawful and unconstitutional and as such prayed for

reinstatement in service with all consequential benefits, hence this claim.

The respondent resisted and contested the claim of the petitioner, which filed reply interalia raising

preliminary objections of maintainability, abandonment and the petitioner has violated the standing orders of the

company. On merits, it is contended that the petitioner was appointed as clerk-cum-typist @ 750/- per month and then

he was assigned the duties of time office assistant and was getting Rs. 3325/- per month at the time of abandonment

and that the services of the petitioner were never terminated by the respondent, who abandoned the job of his own and

that the petitioner applied for earned leave w.e.f. 20.8.2001 to 20.9.2001 which was sanctioned by the competent

authority and as such the petitioner was to report for duties on 21.9.2001 but the petitioner failed to report for duties

and then the petitioner procured ESI sick leave from ESI Doctor from back date on 20.9.2001 and the same was

extended from time to time till 13.11.2001 and if the petitioner was on sick leave till 13.11.2001 then how he presumed

that his services have been terminated by the respondent on 21.9.2001 and even after the expiry of the sick leave, the

petitioner did not report for duties nor he submitted his fitness certificate and that during the conciliation proceedings,

the respondent offered the petitioner to join his duties or to receive full & final payment according to his writing on the

back of leave application but the petitioner did not join nor received the full & final payment and then the respondent

waited for a long time but the petitioner did not join his duties and on 12.12.2001, the petitioner was advised by the

respondent to join his duties within three days but to no avail and then vide letter dated 28.12.2002, the petitioner was

again asked to join his duties which the petitioner refused and vide letter dated 14.2.2003, it was communicated by the

respondent that his services seemed to have abandoned as per certified standing orders. It is also contended that the

petitioner was running a stationery article shop at Juddi Khurd which is very near to the staff colony of the respondent

and that there was no need of issuing any charge sheet or intimation of enquiry as the petitioner has abandoned the job

of his own, who himself failed to report for duties and as such prayed for the dismissal of the claim petition.

In the rejoinder, the petitioner controverted the assertions made in the reply and reiterated and

reaffirmed the averments of the petition.

The following issues were framed by this court on 8.12.2005 on the pleadings of the parties.

Whether the services of the petitioner have been illegally terminated by the respondent in

violation of I.D Act, 1947? If so, its effect?

…OPP.

If issue no.1 is proved in affirmative, to what relief the petitioner is entitled to?

…OPP.

Relief.

I have heard the Ld. Counsels for the parties and have gone through the record of the case.

For the reasons to be recorded hereinafter while discussing the issues for determination, my findings on

the aforesaid issues are as under:

Issue No. 1 Yes.

Issue No. 2 Entitled for reinstatement in service with seniority and continuity but without back wages.

Relief.

Reference answered in affirmative per operative part of award.

REASONS FOR FINDINGS

Issues 1.

Coming to this issue, the petitioner has examined two PWs in all. Petitioner Shubhender Parsad stepped

into the witness box as PW1, who has stated that he was appointed as clerk-cumtypist by the respondent in Jan. 1988 at

Baddi where he worked continuously till 2001 and then he applied for one month earned leave which was sanctioned

and he also fell ill and then he applied for medical leave upto November, 2001 and fitness certificate was submitted by

him on 24.11.2001. His leave application was taken but he was not permitted to enter in the factory. His services were

illegally terminated without notice and compensation. He worked for 240 days in each year during his service. No

enquiry nor chargesheet has been service up on him and the respondent company has engaged new persons who are

still working and proved the medical certificate alongwith fitness Ex. P1 to Es. P7 and as such prayed for reinstatement

with all benefits.

Shri Tarsem Lal appeared into the dock as PW2, who has stated that he run a STD booth at Juddi Khurd

(Baddi) which does not belong to Subhender Parsad and proved the photocopy of licence to install, maintain and

operate STD/ISD/pay phone as BSNL franchised PCO.

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2189

10.

To rebut the case of the petitioner, the respondent examined two RWs in all. Shri Jai Bahadur Kaushik,

Personnel Manager, Deepak Spinners Ltd. Baddi stepped into the dock as RW1, who has stated that the petitioner was

engaged as typist since 15.1.1988, who proceeded on one month earned leave to visit his native place w.e.f.20.8.2001

to 20.9.2001 but the petitioner did not report on 21.9.2001 and the petitioner extended his leave on medical ground till

13.11.2001 and during this period, the petitioner raised an Industrial Dispute on 3.11.2001 vide Ex. RB and they served

a notice to the petitioner vide Ex. RF to which the petitioner refused to accept, the report of which is Ex. RF1 and then

notice Ex. RG dated 28.12.2002 was served to the petitioner which was also refused by the petitioner vide Ex. RG1 and

then final notice Ex. RD was issued to the petitioner as per certified standing orders videEx. RH.

11.

RW2 Shri Pram Nath Pilly, Assistant Labour Officer, Deepak Spinner, Ltd. Baddi has stated on oath

that he know Shri Dalip Singh Rathore, Peon, who was engaged in June, 2002 and worked till 1.6.2006. He had seen he

noting and signature on Ex. RF & RGI which are the signature of Dalip Singh Rathore. He had brought the attendance

abandoned the job of the respondent.

12.

Shri O.P Sharma, Ld. Counsel for petitioner has vehemently argued at the very out set that the

petitioner has proved on record that he has completed 240 working days in twelve calendar months preceding his

termination and the petitioner was suffering from mental disorder on 14.1.2003 when he was terminated from service

and even the application alongwith medical certificate was submitted to the respondent which was not accepted by

them for the reasons best known to it. He has urged that no domestic enquiry was conducted against the petitioner by

the respondent before his termination and even no notice nor compensation was given to the petitioner by the

respondent and as such the petitioner is liable to be reinstated in service alongwith all consequential benefits. 10. On

the contrary, Shri Sandeep Dutta Ld. Counsel for respondent controverted the arguments of Shri Shirshoo and has

submitted that the petitioner has not completed 240 working days in twelve calendar months preceding his termination.

He has also urged that the petitioner had submitted a false medical certificate of his absence whereas he was marked

presence at the relevant time and therefore the claim of the petitioner is liable to be dismissed being false.

11.

I have considered the respective contentions of both the parties and have scrutinized the record of the

case.

12.

After the close scrutiny of the record of the case, the entire edifice of the petitioner case is rested upon

his testimony, who has stated that he was engaged as daily wages beldar by the respondent in October, 1998 and

worked as such till Jan. 2003 which fact has not disputed by the respondent. It is also borne out from the record that the

petitioner has completed 240 working days in twelve calendar months preceding his termination but the petitioner

resumed his duties on 15.9.2004 alongwith medical certificate but he was not allowed to join his duties as is evident

from the statement of RW1 Er. N.S Guleria. It is significant to note that RW1 could not comment on the illness of the

petitioner who has shown his ignorance as to whether junior to the petitioner are still continuing in service of

respondent. It is also proved on record that the respondent has not taken any steps to resume the duties of petitioner. I

have also observed that no domestic enquiry was conducted against the petitioner by the respondent even if the

petitioner made default in appearance for quite long time who claims that he was suffering from mental disorder and

when he recovered from his illness, he resumed his duties on 15.9.2004 alongwith his medical certificate but he was not

allowed to join which amounts to unfair labour practice and further it is also proved on record that no notice nor

retrenchment compensation was paid to the petitioner at the time of his termination.

13.

Thus, having regard to the entire evidence on record I am of the firm opinion that the termination of

services of petitioner by the respondent w.e.f. 14.1.2003 without following the provisions of Industrial disputes Act,

1947 is improper and unjustified as no opportunity of being heard was afforded to the petitioner by the respondent at

any point of time. Accordingly, issue no. 1 is decided in favour of the petitioner and against the respondent.

Issue No. 2.

14.

Since I have held under issue No. 1 above that the termination of the services of petitioner by the

respondent w.e.f. 14.1.2003 without following the provisions of Industrial Disputes Act, 1947 is improper and

unjustified, hence the petitioner is held entitled to reinstatement in service alongwith seniority and continuity. However,

the petitioner is not entitled to back wages in view of the peculiar circumstances of case. Accordingly, issue No. 2 is

decided in favour of the petitioner and against the respondent.

Issue No. 3

15.

In support of this issue, no evidence was led by the respondent nor it was pointed out during the course

of arguments However, I find nothing wrong with this claim petition which is perfectly maintainable in the present

form. Accordingly, issue no.3 is decided in favour of the petitioner and against the respondent.

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Issue No. 4

16.

In support of this issue no evidence was led by the respondent being the legal issue. Accordingly, issue

no.4 is decided in favour of the petitioner and against the respondent.

RELIEF

As a sequel to my above discussion and findings on issues no.1 to 4, the claim of the petitioner succeeds and is

hereby allowed and the petitioner is ordered to be reinstated in service with seniority and continuity. However, the

petitioner is not entitled to any back wages inview of the peculiar circumstances of the case as a result of which the

reference is ordered to be answered accordingly. Let a copy of this award be sent to the appropriate government for

publication in the official gazette. File, after completion, be consigned to records.

Announced in the open court today on this day of 17th March, 2010 in the presence of parties counsels.

JAGMOHAN SINGH MAHANTAN,

Presiding Judge,

Labour Court, Shimla.

___________

Ref.100/2009

27.3.2010

PRESEIDENT/GEN SECRY WORKERS UNION V/S M/S PUROLATOR INDIA LTD. PARWANOO

27.3.2010

Present: None for the petitioner.

Sh. Dushyant Dadwal, Ld Csl for respondent.

It is 12.15 PM,but no appearance put in by the petitioner of his counsel. Be awaited.

Presiding Judge,

Labour Court, Shimla.

_____________

27.3.2010

Present: None for the petitioner.

Sh. Dushyant Dadwal, Ld Csl for respondent.

It is 2.05 PM. Case is called out in pre and post lunch sessions but none appeared on behalf of the petitioner

which clearly shows that the petitioner has no interest to persue this case, hence the claim of the petitioner is Dismissed

in default as a result of which the reference is ordered to be answered accordingly. Let a copy of this order be sent to

the appropriate government for publication in the official gazette. File , after completion, be consigned to records.

Announced

27.3.2010

Presiding Judge,

Labour Court, Shimla.

____________

IN THE COURT OF JAGMOHAN SINGH MAHANTAN, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA CAMP AT NAHAN

Ref no. 101 of 2007.

Instituted on. 24.9.2007.

Decided on. 17.3.2010.

Ramesh Kumar S/o Shri Rangia Ram R/o VillageBharala, Tehsil Sunni, District Shimla, HP.

. . Petitioner.

Vs.

jkti=] fgekpy izns'k] 20 tqykbZ] 2010@29 vk"kk<+] 1932

2191

The Commissioner, Municipal Corporation, Shimla-1

. . Respondent.

Reference under Section 10 of the Industrial Disputes Act, 1947.

For petitioner:

Shri Shashi Shirshoo, Ld. Csl.

For respondent: Shri Sandeep Dutta, Ld. Csl.

AWARD

The following reference has been received from appropriate government by this court for adjudication:

“Whether the termination of services of Shri Ramesh Kumar S/o Shri Rangia Ram workman by the

Commissioner, Municipal Corporation, Shimla-1 w.e.f. 14.1.2003 without complying the provisions of the

Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits and amount of

compensation the above aggrieved workman is entitled to?”

The petitioner has filed a statement of claim asserting therein that the petitioner was engaged as daily

wages beldar on muster roll basis with the respondent w.e.f. October, 1998 and worked continuously till Jan. 2003

whose services were terminated orally w.e.f. 14.1.2003 without complying the provisions of Industrial Disputes Act,

1947 as no notice under section 25F of the Industrial Disputes Act was served upon the petitioner nor any retrenchment

compensation was given to the petitioner and that the petitioner has completed 240 days in each calendar year and even

no enquiry was conducted against the petitioner prior to his retrenchment and even many fresh hands have been put to

work by the respondent after retrenching the services of the petitioner which is in violation of section 25H of the

Industrial Disputes Act and the principle of last come first go was not followed by the respondent and that the petitioner

fell ill in the month of Jan. 2003, who could not join his duties till 15th Sept. 2004 and then the petitioner approached

the JE alongwith joining report and medical certificate but he was not allowed to join his duties and that as per the

provisions of Industrial Disputes Act and other provisons of service rules, the employer is bound to give the notice to

the workman if he is not coming on work but in the case of the petitioner, no provision was followed by the respondent

and that the respondent has flouted all cannons of law and abruptly dispensed with the services of the petitioner without

assigning any reason and the action of the respondent is totally illegal, arbitrary and unconstitutional and as such

prayed for reinstatement alongwith all consequential benefits, hence this claim.

The respondent resisted and contested the claim of the petitioner, which filed reply interalia raising

preliminary objections of maintainability, having no cause of action and the claim is bad for issuance of mandatory

notice under section 392 of HP MC Act, 1994. On merits, it is admitted that the petitioner has joined as beldar on daily

wages with the respondent w.e.f. October, 1998 and worked till 14th Jan. 2003. It is denied that the services of the

petitioner were terminated orally w.e.f. 14.1.2003, who left the job of his own and failed to join his services upto

September, 2004 and the principle of first come last go is not applicable in this case as the petitioner left the job of his

own and that the petitioner submitted an application on 15.9.2004 alongwith medical certificate w.e.f. 1.1.2003 to

15.9.2004 for 593 days and the medical certificate issued by the private Doctor is false, frivolous and wrong as during

this period the petitioner was present on duty and as such prayed for the dismissal of the claim and the reply is

supported by an affidavit.

No rejoinder filed. The following issues were framed by this court on 1.11.2008 on the pleadings of the

parties.

1. Whether the termination of services of Shri Ramesh Kumar petitioner by the Commissioner M.C

Shimla w.e.f. 14.1.2003 without complying with the provisions of I.D act, 1947 is improper &

unjustified as alleged?

. . OPP.

2. If issue no.1 is proved, to what service benefits and compensation the petitioner is entitled to?

. . OPP.

3. Whether the claim is not maintainable in the present form?

. . OPR.

Whether the claim is bad for want of mandatory notice under section 392 of M.C Act, 1994?

. . OPR.

5. Relief.

I have heard the Ld. Counsels for the parties and have gone through the record of the case.

For the reasons to be recorded hereinafter while discussing the issues for determination, my findings on

the aforesaid issues are as under:

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Issue No. 1 Yes.

Issue No. 2 Entitled for reinstatement in service with seniority and continuity but without back wages.

Issue No. 3 No.

Issue No. 4 Not proved.

Relief.

Reference answered in affirmative per operative part of award.

REASONS FOR FINDINGS

Issues 1.

Coming to this issue, the petitioner stepped into the witness box as PW1, who has stated that he was

engaged as beldar on daily wages by the respondent from October, 1998 and worked as such till Jan. 2003 and then he

was removed from service without any notice nor paid retrenchment compensation at the time of his removal. After

Jan. 2003, he was suffering from mental disorder, who remained under treatment w.e.f. 1.1.2003 to 15.9.2004. He

submitted the applications regarding his illness to the concerned JE of the respondent corporation on 15.8.2003,

25.12.2003. He also made an application to the Principal Secretary Urban Development regarding his illness and for

reengagement. He worked for more than 240 working days in a calendar year preceding his termination and as such

prayed for reinstatement in service alongwith consequential benefits including back wages.

To rebut the case of the petitioner, the respondent examined RW1 Er. N.S Guleria, Additional Assistant

Engineer, M.C Shimla, who has stated that the petitioner was engaged as Mazdoor on daily wages in October, 1998,

who worked as such till 14.1.2003 and then abandoned the job of his own, who came to join his duties on 15.9.2004

alongwith his medical certificate of private practitioner but he was not allowed to join his duties and as such the claim

of the petitioner is false.

Shri Shashi Shirshoo, Ld. Counsel for petitioner has vehemently argued at the very out set that the

petitioner has proved on record that he has completed 240 working days in twelve calendar months preceding his

termination and the petitioner was suffering from mental disorder on 14.1.2003 when he was terminated from service

and even the application alongwith medical certificate was submitted to the respondent which was not accepted by

them for the reasons best known to it. He has urged that no domestic enquiry was conducted against the petitioner by

the respondent before his termination and even no notice nor compensation was given to the petitioner by the

respondent and as such the petitioner is liable to be reinstated in service alongwith all consequential benefits.

10.

On the contrary, Shri Sandeep Dutta Ld. Counsel for respondent controverted the arguments of Shri

Shirshoo and has submitted that the petitioner has not completed 240 working days in twelve calendar months

preceding his termination. He has also urged that the petitioner had submitted a false medical certificate of his absence

whereas he was marked presence at the relevant time and therefore the claim of the petitioner is liable to be dismissed

being false.

11.

I have considered the respective contentions of both the parties and have scrutinized the record of the

case.

12.

After the close scrutiny of the record of the case, the entire edifice of the petitioner case is rested upon

his testimony, who has stated that he was engaged as daily wages beldar by the respondent in October, 1998 and

worked as such till Jan. 2003 which fact has not disputed by the respondent. It is also borne out from the record that the

petitioner has completed 240 working days in twelve calendar months receding his termination but the petitioner