jkti=] fgekpy izns'k

fgekpy izns'k jkT; 'kklu }kjk izdkf'kr

f”keyk]

f”keyk] 'kfu

'kfu

'kfuokjkjkjkj] ] ] ] 7 vxLr

vxLr

vxLr] 2010

] 2010

] 2010@16 Jko.k]

Jko.k]

Jko.k] 1932

1932

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH, SHIMLA - 171 001

NOTIFICATION

Shimla, the 1st July, 2010

No.HHC/GAZ/14-253/2002.—Hon’ble the Chief Justice has been pleased to grant 8 days’

earned leave w.e.f. 2-7-2010 to 9-7-2010 with permission to suffix second Saturday and Sunday

falling on 10-7-2010 and 11.7.2010 in favour of Shri Gaurav Mahajan, Civil Judge (Jr. Division)-

cum-JMIC, Manali.

Certified that Shri Mahajan is likely to join the same post and at the same station from

where he proceeds on leave, after expiry of the above period of leave.

Also certified that Shri Mahajan would have continued to hold the post of Civil Judge (Jr.

Division)-cum-JMIC, Manali, but for his proceeding on leave for the above period.

By order.

Sd/-

Registrar General.

96&jkti=@2010&7&8&2010

¼2793½

2794

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

HIGH COURT OF HIMACHAL PRADESH, SHIMLA - 171 001

NOTIFICATION

Shimla, the 1st July, 2010

No.HHC/Admn.16 (7)74-IX.—Hon’ble the Chief Justice, in exercise of the powers vested

in him U/S 139(b) of the Code of Civil Procedure, 1908, U/S 297(b) of the Code of Criminal

Procedure, 1973 and Rule 5(vi) of the H.P. Oath Commissioners (Appointment & Control) Rules,

2007 has been pleased to appoint Sh. Vishal Sood and Sh. Daljit Singh, Advocates, Palampur, as

Oath Commissioners at Palampur, for a period of two years, with effect from 4.8.2010 for

administering oaths and affirmations on affidavits to the deponents, under the aforesaid Codes and

Rules.

By order,

Sd/-

Registrar General.

_________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA 171 001

NOTIFICATION

Shimla, the 2nd July, 2010

No.HHC/GAZ/14-258/2003.—Hon’ble the Chief Justice has been pleased to grant 5 days

earned leave w.e.f. 5.7.2010 to 9.7.2010 with permission to prefix Sunday falling on 4th July, 2010

and to suffix Saturday and Sunday falling on 10th & 11th July, 2010 in favour of Shri Avinash

Chander, Civil Judge (Jr. Division)-cum-JMIC, Karsog.

Certified that Shri Avinash Chander is likely to join the same post and at the same station

from where he proceeds on leave, after expiry of the above period of leave.

Also certified that Shri Avinash Chander would have continued to hold the post of Civil

Judge (Jr. Division)-cum-JMIC, Karsog but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

___________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171 001

NOTIFICATION

Shimla, the 2nd July, 2010

No. HHC/GAZ/14-160/84-I.—Hon’ble the Chief Justice has been pleased to grant ex post

facto sanction of 13 days commuted leave w.e.f. 12.12.2009 to 24.12.2009 with permission to

suffix gazetted holiday fallen on 25.12.2009 in favour of Shri C.L. Kochhar, Additional District

and Sessions Judge, Shimla.

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

2795

Certified that Shri Kochhar has joined the same post and at the same station from where he

proceeded on leave, after expiry of the above period of leave.

Also certified that Shri Kochhar would have continued to hold the post of Additional

District and Sessions Judge, Shimla, but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

___________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA - 171 001

NOTIFICATION

Shimla the 3rd July, 2010

No.HHC/Admn.6(23)/74-XIII.—Hon’ble the Chief Justice in exercise of the powers

vested in him under Rule 1.26 of H.P. Financial Rules, 1971, Volume-I, has been pleased to declare

the Civil Judge (Jr. Division)-cum-JMIC, Jawali as Drawing and Disbursing Officer in respect of

the Courts of Civil Judge (Sr. Division)-cum-JMIC(I), Nurpur and Civil Judge (Sr. Division)-cum-

JMIC(II), Nurpur and also the Controlling Officer for the purpose of T.A. etc. in respect of Class-

II, III and IV establishments attached to the aforesaid Court with effect from 28.6.2010 to

11.7.2010 and thereafter the Civil Judge (Jr. Division)-cum-JMIC(II), Nurpur has been declared as

Drawing and Disbursing Officer as well as Controlling Officer in respect of establishment attached

to the Court of Civil Judge (Sr. Division)-cum-JMIC(I), Nurpur w.e.f. 12.7.2010 to 25.7.2010 or till

Shri R.K. Tomar returns from leave under Head “2014-Administration of Justice”.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171 001

NOTIFICATION

Shimla, the 1st July, 2010

No.HHC/Admn.2(21)/82-III.—In the interest of administration, the following officials of

the Subordinate Judiciary who have joined in this Registry as Clerks are posted in the Judicial

Branch with immediate effect :-

Ms. Shakuntla Sharma, Clerk;

Smt. Anuradha Bhatt, Clerk;

Smt. Sanjeeta Chauhan, Clerk.

By order,

Sd/-

Registrar General.

2796

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

mPprj f'k{kk foHkkx

vf/klwpuk

f'keyk&2] 5&04&2010

la[;k%

la[;k% bZbZbZbZ-MhMhMhMh-,u

,u-&,0&[k ¼1½&1@20

&,0&[k ¼1½&1@20

&,0&[k ¼1½&1@2006

0606

06-&&

&&fgekpy izns'k dh jkT;iky] Hkkjr ds lafo/kku ds

vuqPNsn 309 ds ijUrqd }kjk iznRr 'kfDr;ksa dk iz;ksx djrs gq,] fgekpy izns'k yksd lsok vk;ksx ds

ijke'kZ ls] vf/klwpuk la[;k [k ¼15½&2@92&f'k{kk&d&A] rkjh[k 24&8&1992 }kjk vf/klwfpr fgekpy

izns'k] mPprj f'k{kk foHkkx] iz/kkukpk;Z ¼Ldwy laoxZ½] oxZ&I ¼jktif=r½ ds HkrhZ vkSj izksUufr fu;e] 1992

rFkk vf/klwpuk la[;k bZMh,u0&,& d ¼1½&1@2006] fnukad 10 vxLr] 2007 }kjk la'kksf/kr o vf/klwfpr

¼izFke la'kks/ku½ fu;e] 2007 dk vkSj la'kks/ku djus ds fy, fuEufyf[kr fu;e cukrh gSas] vFkkZr~%&

lafafafaf{kIr uke vkSj izkjEHk

{kIr uke vkSj izkjEHk

{kIr uke vkSj izkjEHk-&&

&&¼1½ bu fu;eksa dk laf{kIr uke fgekpy izns'k mPprj f'k{kk

foHkkx] iz/kkukpk;Z ¼Ldwy laoxZ½] oxZ&I, ¼jktif=r½ HkrhZ vkSj izksUufr ¼f}rh; la'kks/ku½ fu;e] 2010 gS A

¼2½ ;s fu;e jkti=] fgekpy izns'k esa izdkf'kr fd, tkus dh rkjh[k ls izo`Rr gksaxs A

2- mikcU/k&d dk l

mikcU/k&d dk l

mikcU/k&d dk la'a'a'a'kkkkkkkks/s/s/s/kukukuku-&&

&&fgekpy izns'k mPprj f'k{kk foHkkx foHkkx] iz/kkukpk;Z ¼Ldwy

laoxZ½] oxZ&I ¼jktif=r½ ds HkrhZ vkSj izksUufr ¼izFke la'kks/ku½ fu;e] 2007 ds mikcU/k&d esa LrEHk 11 ds

lkeus fo|eku micU/kksa ds LFkku ij fuEufyf[kr j[kk tk,xk] vFkkZr%&

¼i½ ipkl izfr'kr] eq[;k/;kidksa esa ls izksUufr }kjk] ftudk rhu o’kZ dk fu;fer lsokdky ;k

xszM esa dh xbZ rxkrkj rnFkZ lsok] ;fn gksbZ gks] dks lfEefyr djds rhu o’kZ dk fu;fer

lsokdky gks] ,slk u gksus ij eq[;k/;kidksa esa ls izksUufr }kjk] ftudk eq[;k/;kid@izf'kf{kr

Lukrd v/;kid dk la;qDrr% iUnzg o’kZ dk fu;fer lsokdky ;k dh xbZ yxkrkj rnFkZ

lsok dk lfEefyr] djds iUnzg o’kZ dk la;qDrr% fu;fer lsokdky gks] ftlesa eq[;k/;kid

ds :i esa nks o’kZ dk lsokdky gksuk vfuok;Z gS A

¼ii½ ipkl izfr'kr] Ldwy izoDrk laoxZ ls lacfa/kr Ldwy izoDrkvksa ¼oxZ&II jktif=r½ esa ls

izksUufr }kjk ftudk Ldwyksa esa fu;fer izoDrk ds :i esa vkB o’kZ dk v/;kid vuqHko gks ;k

xzsM esa dh xbZ yxkrkj rnFkZ lsok ;fn dksbZ gks] dks lfEefyr djds vkB o’kZ dk fu;fer

lsokdky gks(

IkjUrq izksUufr ds iz;kstu ds fy, izR;sd deZpkjh dks] tutkrh;@ nqxZe {ks=ksa esa in ¼inksa½ dh ,sls

{ks=ksa esa Ik;kZIr la[;k dh miyC/krk ds v/;/khu] de ls de ,d dk;Zdky rd lsok djuh gksxh%

IkjUrq ;g vkSj fd mi;qZDr ijUrqd ¼1½ mu deZpkfj;ksa ds ekeys esa ykxw ugha gksxk ftudh

vf/kof’kZrk ds fy, ikap o’kZ ;k mlls de dh lsok 'ks’k jgh gks%

IkjUrq ;g vkSj Hkh fd mu vf/kdkfj;ksa@deZpkfj;ksa dks] ftUgksaus tutkrh;@ nqxZe {ks= esa de ls

de ,d dk;Zdky rd lsok ugha dh gS] ,sls {ks= esa mlds vius laoxZ ¼dkMj½ esa loZFkk ofj’Brk ds

vuqlkj LFkkukUrj.k fd;k tk,xkA

Li’Vhdj.k

Li’Vhdj.k I-&&mi;qZDr ijUrqd ds iz;kstu ds fy, tutkrh;@ nqxZe {ks=ksa esa Þdk;ZdkyÞ ls

lk/kkj.kr;k rhu o’kZ dh vof/k ;k iz'kklfud vis{kkvksa vkSj deZpkjh }kjk fd, x, dk;Z dks /;ku esa j[krs

gq, ,sls {ks=ksa esa rSukrh dh blls de vof/k vfHkizsr gksxh A

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

2797

Li’Vhdj.k

Li’Vhdj.k II-&&mi;qZDr ijUrqd ds Ikz;kstu ds fy, tutkrh;@nqxZe {ks= fuEu izdkj ls gksax%&

ftyk ykgkSy ,oa fLifr A

pEck ftyk dk ikaxh vkSj HkjekSj mi e.MyA

jksgMw mi e.My dk MksMjk Dokj {ks=A

ftyk f'keyk dh jkeiqj rglhy dk iUnzg chl ijxuk] equh’k] njdkyh vkSj xzke iapk;r

dk'kkikVA

dqYyw ftyk dk iUnzg chl ijxukA

dkaxM+k ftyk ds cStukFk mi e.My dk cM+k Hkaxky {ks=A

ftyk fdUukSjA

fljekSj ftyk esa mi rglhy dejm ds dkBokM+ vkSj dksjxk iVokj o`Rr] js.kqdkth rglhy ds

HkykM+&HkYkkSuk vkSj lkaxuk iVokj o`Rr vkSj f'kykbZ rglhy dk dksVk ikc iVokj o`RrA

e.Mh ftyk esa djlksx rglhy dk [kU;ksy&cxM+k iVokj o`Rr] ckyh pkSdh mi rglhy ds xkMk

xkslkbZa] eB;kuh] ?ku;kM]+ Fkkph] ckxh] lksexkM+ vkSj [kksykuky] Ik)j rglhy ds >kjokM]+ dqVx<]+

xzkeu] nsox<]+ VªSyk] jksik] dFkksx] flYg&HkM+okuh] gLriqj] ?kejsM+ vkSj HkVs<+ iVokj o`Rr] Fkqukx

rglhy ds fp;w.kh] dkyhikj] ekux<]+ Fkkp&cxM+k mRrjh ex: vkSj nf{k.kh ex: iVokj o`Rr vkSj

lqUnjuxj rglhy dk cVokM+k iVokj o`RrA

¼1½ izksUufr ds lHkh ekeyksa esa in ij fu;fer fu;qfDr ls iwoZ lEHkjd ¼iks’kd½ in esa dh xbZ

yxkrkj rnFkZ lsok] ;fn dksbZ gks] izksUufr ds fy, bu fu;eksa esa ;Fkkfofgr lsokdky ds fy,] bl 'krZ ds

v/khu jgrs gq, x.kuk esa yh tk,xh] fd lEHkjd izoxZ esa rnFkZ fu;qfDr@izksUufr] HkrhZ vkSj izksUufr fu;eksa

ds micU/kksa ds vuqlkj p;u dh mfpr Lohdk;Z izfdz;k dks viukus ds Ik'pkr~ dh xbZ Fkh%

ijUrq mu lHkh ekeyksa esa ftuesa dksbZ dfu"B O;fDr lEHkjd in esa vius dqy lsokdky ¼rnFkZ

vk/kkj ij dh xbZ rnFkZ lsok lfgr] tks fu;fer lsok@fu;qfDr ds vuqlj.k esa gks½ ds vk/kkj ij mi;qZDr

fufnZ"V micU/kksa ds dkj.k fopkj fd, tkus dk ik= gks tkrk gS] ogka vius&vius izoxZ@in@dkMj esa

mlls ofj"B lHkh O;fDr fopkj fd, tkus ds ik= le>s tk,axs vkSj fopkj djrs le; dfu"B O;fDr ls

Åij j[ks tk,axs%

ijUrq ;g vkSj fd mu lHkh in/kkfj;ksa dh] ftu ij izksUufr ds fy, fopkj fd;k tkuk gS] dh de

ls de rhu o"kZ dh U;wure vgZrk lsok ;k in ds HkrhZ vkSj izksUufr fu;eksa esa fofgr lsok] tks Hkh de gks]

gksxh%

ijUrq ;g vkSj Hkh fd tgka dksbZ O;fDr iwoZxkeh ijUrqd dh vis{kkvksa ds dkj.k izksUufr fd, tkus

lEcU/kh fopkj ds fy, vik= gks tkrk gS] ogka mlls dfu"B O;fDr Hkh ,slh izksUufr ds fopkj ds fy,

vik= le>k tk,xk@le>s tk,axs A

Li"Vhdj.k

Li"Vhdj.k-&&vafre ijUrqd ds vUrxZr dfu"B in/kkjh izksUufr ds fy, vik= ugha le>k tk,xk

;fn ofj"B vik= O;fDr HkwrioZ lSfud gS ftls fMekschykbTM vkeMZ QksflZt ijlksuy ¼fjtosZ'ku vkWQ

oSdsUlht bu fgekpy LVsV ukWu VSDuhdy lfoZlht½ :Yt] 1972 ds fu;e&3 ds micU/kksa ds vUrxZr HkrhZ

fd;k x;k gS vkSj buds vUrxZr ojh;rk ykHk fn, x, gksa ;k ftls ,Dl lfoZleSu ¼fjtosZ'ku vkWQ

2798

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

oSdsUlht bu nh fgekpy izns'k VsSDuhdy lfoZlht½ :Yt] 1985 ds fu;e&3 ds micU/kksa ds vUrxZr HkrhZ

fd;k x;k gks vkSj buds vUrxZr ojh;rk ykHk fn, x, gksaA

¼2½ blh izdkj LFkkbZdj.k ds lHkh ekeyksa es ,sls in ij fu;fer fu;qfDr ls iwoZ dh lEHkjd in

ij dh xbZ yxkrkj rnFkZ lsok] ;fn dksbZ gks] lsokdky ds fy, x.kuk esa yh tk,xh] ;fn rnFkZ

fu;qfDr@izksUufr] mfpr p;u ds Ik'pkr~ vkSj HkrhZ vkSj izksUufr fu;eksa ds micU/kksa ds vuqlkj dh xbZ Fkh%

ijUrq dh xbZ mi;qZDr fufnZ"V rnFkZ lsok dks x.kuk esa ysus ds Ik'pkr~ tks LFkkbZdj.k gksxk mlds

QyLo:Ik ikjLifjd ojh;rk vifjofrZr jgsxh A

vkns'k }kjk]

gLrk0@&

iz/kku lfpo A

&&&&&&&&&&

[Authoritative English text of this Department Notification No. EDN.-A-Ka (1)-1/2006,

dated_____________, 2009 required under clause (3) of Article 348 of the Constitution of India].

HIGHER EDUCATION DEPARTMENT

(Education-B)

NOTIFICATION

Shimla-171002, 5-04- 2010

No. EDN.-A-Ka (1)-1/2006.—In exercise of the powers conferred by proviso to Article 309

of the Constitution of India, the Governor, Himachal Pradesh, in consultation with the Himachal

Pradesh Public Service Commission, is pleased to make the following Rules, further to amend the

Recruitment and Promotion Rules for the post of Principal (School Cadre), Class-I (Gazetted) in

the Higher Education Department, Himachal Pradesh notified vide Notification No. Kha (15)-2/92-

Edu-A-I, dated 24.8.1992 and amended vide notification No.-EDN-A-Ka (1)-1/2008, dated 10th

August, 2007; namely:-

Short Title and Commencement.— (1) These rules may be called the Himachal

Pradesh, Higher Education Department, Principal (School Cadre) Class-I (Gazetted) Recruitment

and Promotion (Second Amendment) Rules, 2010.

(2) These rules shall come into force from the date of publication in the Rajpatra,

Himachal Pradesh.

Amendment of Annexure-“A”.— In Annexure-“A” to the Himachal Pradesh Higher

Education Department, Principal (School Cadre) Class-I (Gazetted) Recruitment and Promotion

(First Amendment )Rules,2007 for the existing provision against Col. No. 11 the following shall be

substituted, namely;

(i)

50% by promotion from amongst the Headmasters with three years regular service or

regular combined with continuous adhoc service, rendered, if any, in the grade failing

which from amongst the Headmasters with 15 years regular service or regular

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

2799

combined with continuous adhoc service rendered, if any, as Headmaster/TGT

combined out of which 02 years service as Headmaster is essential.

(ii) 50% by promotion from amongst School Lecturers (Class-II Gazetted) belonging to

School Lecturers cadre with eight years teaching experience in Schools as Lecturer on

regular basis or regular combined with continuous adhoc service rendered, if any, in

the grade.

(1) Provided that for the purpose of promotion every employee shall have to serve atleast

one term in theTribal/Difficult areas subject to adequate number of post (s) available in such areas;

Provided further that the proviso (1) supra shall not be applicable in the case of those

employees who have five years or less service, left for superannuation.

Provided further that Officers/Officials who have not served atleast one tenure in

Tribal/difficult area shall be transferred to such area strictly in accordance with his/her seniority in

the respective cadre.

Explanation I.—For the purpose of proviso (1) supra the“term” in Tribal/Difficult areas

shall mean normally three years or less period of posting in such areas keeping in view the

administrative requirements and performance of the employee.

Explanation II.— For the purpose of proviso (1) supra the Tribal/Difficult Areas shall be

as under:-

District Lahaul & Spiti.

Pangi and Bharmour Sub Division of Chamba District.

Dodra Kawar Area of Rohru Sub Division.

Pandrah Bish Pargana, Munish Darkali and Gram Panchayat Kashapat, Gram Panchayats of

Rampur Tehsil of District Shimla.

Pandrah Bish Pargana of Kullu District.

Bara Bhangal Areas of Baijnath Sub Division of Kangra District.

District Kinnaur.

Kathwar and Korga Patwar Circles of Kamrau Sub Tehsil, Bhaladh Bhalona and Sangna

Patwar Circle of Renukaji Tehsil and Kota Pab Patwar Circle of Shillai Tehsil, in Sirmour

District.

Khanyoi-Bagra Patwar Circle of Karsog Tehsil Gada-Gusaini,Mathyani, Ghanyar, Thachi,

Baggi, Somgad and Kholanal of Bali-Chowki Sub Tehsil, Jharwar, Kutgarh, Graman,

Devgarh, Trailla, Ropa, Kathog, Silh-Badhwani, Hastpur, Ghamrehar and Bhatehar Patwar

2800

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

Circle of Padhar Tehsil,Chiuni, Kalipar, Mangarh, Thach-Bagra,North Magru and South

Magru Patwar Circles of Thunag Tehsil and Batwara Patwar Circle of Sunder Nagar Tehsil

in Mandi District.

(1) In all cases of promotion, the continuous adhoc service rendered in the feeder post, if

any, prior to regular appointment to the post shall be taken into account towards the length of

service as prescribed in these rules for promotion subject to the condition that the adhoc

appointment/promotion in the feeder category had been made after following proper acceptable

process of selection in accordance with the provision of Recruitment and Promotion Rules:-

Provided that in all cases where a junior person becomes eligible for consideration by virtue

of his/her total length of service (including service rendered on adhoc basis, followed by regular

service /appointment in the feeder post in view of the provision referred to above) all persons senior

to him/her in the respective category/post/cadre shall be deemed to be eligible for consideration and

placed above the junior person in the field of consideration;

Provided further that all incumbents to be considered for promotion shall possess the

minimum qualifying service of at least three years or that prescribed in the Recruitment and

Promotion Rules for the post, whichever is less;

Provided further that where a junior person becomes ineligible to be considered for

promotion on account of the requirements of the preceding proviso, the person(s) junior to him/her

shall also be deemed to be ineligible for consideration for such promotion.

Explanation.—The last proviso shall not render the junior incumbent (s) ineligible for

consideration for promotion if the senior ineligible person (s) happened to be Ex- Servicemen

recruited under the provision of Rule 3 of Demobilized Armed Forces Personnel ( Reservation of

vacancies in Himachal State Non-Technical Services) Rules, 1972 and having been given the

benefit of seniority there under or recruited under the provisions of Rule 3 of the Ex-Servicemen

(Reservation of Vacancies in the Himachal Pradesh Technical Services) Rules, 1985 and having

been given the benefit of seniority thereunder.

(2)

Similarly, in all cases of confirmation, continuous adhoc service rendered on the

feeder post, if any, prior to the regular appointment against such post shall be taken into account

towards the length of service, if the adhoc appointment/promotion had been made after proper

selection and in accordance with the provision of the R & P Rules;

Provided that inter-se-seniority as a result of confirmation after taking into account, adhoc

service rendered as referred to above shall remain unchanged.

By orders,

Sd/-

Principal Secretary.

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

2801

LANBOUR AND EMPLOYMENT DEPARTMENT

Ref.42/08

MS. SHANTA SHARMA V/S M/S PASTRY GARDEN, THE MALL, SHIMLA

30.06.2010

Present:

Petitioner with counsel Sh. R.K. Chawa.

Ms.Rani Thakur, Advocate for respondent.

As per separate statement of the petitioner, on file, a compromise has been effected between

the parties and as per the same, she has settled her claim in full & final as involved in the claim petition,

filed by her, consequently upon the reference, having been made to this court by the appropriate

government.

I view of the statement of the petitioner, her claim petition stands disposed of as

compromised. Resultantly, the reference stands 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

30.06.2010

Presiding Judge,

Labour Court, Shimla.

_____________

Ref.4/2010

8.5.2010

SMT GURMEET KAUR V/S FACTORY MANAGER, M/S S.S.I.P.L RETAIL LTD DISTT SIRMOUR.

8.5.2010:-

Present:-

None for the petitioner.

Sh.Sitender Singh Malik, Manager Personnel & HR present alongwith Shri Navlesh Verma,

Advocate for the respondent.

Be awaited.

Presiding Judge,

Labour Court, Shimla.

8.5.2010:-

Case called again.

Present:-

None for the petitioner.

Sh.Sitender Singh Malik, Manager Personnel & HR present alongwith Shri Navlesh Verma,

Advocate for the respondent.

Although, notice was sent to the petitioner but there is nothing on record which could go to

show that she has been served. However, it has been sated before this Court by Shri Satinder Singh Malik,

authorized person, on behalf of the respondent company that already, the claim of the petitioner stands

settled as full in final. On having considered his such version, made before this Court, I proceed to record his

statement in this respect, on oath, which has been recorded accordingly.

From the statement of Shri Sitender Singh Malik, made on oath, it has been highlighted that

he has been authorized by the respondent company to appear before this court vide Ex.RA and that as per

Ex. RB, the claim of the petitioner has been settled in full & final.

2802

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

I am satisfied from the statement, having been made by Shri Satinder Singh Malik, on oath,

before this Court as well as Ex.RB, that already, the claim of the petitioner ,as has been referred to this Court

by the Labour Commissioner, by way of reference, has been settled . In these circumstances. I am of the firm

opinion that the reference, in question, can be answered despite the fact that the petitioner is not present

before this Court.

Consequently, for what has been stated and observed above, the claim of the petitioner, as

referred to this Court by the Labour Commissioner by making the references, stands disposed of as having

been compromised. Resultantly, the reference stands 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:

8.6.2010

Presiding Judge,

Labour Court, Shimla.

____________

Ref.5/2010

5.6.2010

SH SARAN DASS V/S G.M.M/S GAWTHANI HYDRO ELECTRIC LTD , SHIMLA

5.6.2010:-

Case called again.

Present:-

None for the petitioner.

Shri Rakesh Kumar ,duly authorized by respondent company as per letter dated 4.6.2010,

filed in this Court, has appeared on behalf of the respondent.

It has been sated by Rakesh Kumar, that the petitioner has already effected a compromise

with the respondent company and as per that compromise , he has settled his claim by way of full & final.

I have considered the statement as made, at bar, by said Rakesh Kumar as well as attested

copy of the statement, made by the petitioner( Saran Dass) on non-judicial paper, where in he has mentioned

that he has settled his calim with the company in full & Final.Consequently, I proceed to record the

statement of Shri Rakesh Kumar, separately Statement recorded.

From the statement made by Shri Rakesh Kumar, coupled with Ex.RB, the statement made

by the petitioner( Saran Dass). On non-judicial paper. I am satisfied that a lawful Compromise has been

effected between the parties, out of court, and pursuant to the same, the petitioner has settled his claim in full

& final. In these circumstances, I am of the firm opinion that there is no need to issue notice to the petitioner

who, for today, has not been served and not presnt.

Accordingly, no further action is required to be taken by this Court, consequent, upon the

reference, having been made to this Court, by Labour Commissioner, in respect of the claim of petitioner,

stated therein. Thus, the claim of the petitioner stands disposed of as compromised with the result, the

reference stands 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:

5.6.2010

Presiding Judge,

Labour Court, Shimla.

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2803

Ref.43/08

MS. GEETA SHARMA V/S M/S PASTRY GARDEN, THE MALL, SHIMLA

30.06.2010

Present:

Petitioner with counsel Sh. R.K. Chawa.

Ms.Rani Thakur, Advocate for respondent.

As per separate statement of the petitioner, on file, a compromise has been effected between

the parties and as per the same, she has settled her claim in full & final as involved in the claim petition,

filed by her, consequently upon the reference, having been made to this court by the appropriate

government.

I view of the statement of the petitioner, her claim petition stands disposed of as

compromised. Resultantly, the reference stands 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

30.06.2010

Presiding Judge,

Labour Court, Shimla.

__________

Ref.45/2010

SH RAKESH KUMAR V/S M.D.M/S BECKON BUSINESS SERVICES PVT LTD, PARWANOO &

OTHERS

2.6.2010:-

Present:-

Petitioner in person.

Sh Ritesh for respondent no.1(Managing Director, Beckon Business services Pvt Ltd.

Miga-1, Sector-3, Parwanoo.)

Shri Sanjav verma, for respondent no.2.(Managing Director, M/s Progression Industry, Pvt

Ltd.)

In view of the statement , of the petitioner, recorded separately, the claim of the petitioner

regarding which a reference has been made to this Court, by the Labour Commissioner of HP, stands

amicably settled as full & final.

Consequently, inview of his statement, recorded today, his claim as referred to this Court by

way of reference, in question , stand amicably settled .Resultantly, the reference stands 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:-

2.6.2010

Presiding Judge,

Labour Court, Shimla.

_________

Ref.50/2009

SH JAI CHAND V/S M.D.M/S CYPER PHARMA PVT LTD.

2.6.2010”-

Present:-

Petitioner in person.

None for respondent.

It has been stated by the petitioner that he dose not want to file statement of claim, as already, he has

effected a compromise with the respondent company and for the reason, he does not want to file statement of

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claim in pursuance to the reference, made to this Court,. Consequently, the claim of the petitioner, in respect

of which, the reference has been made to this Court by the Labour Commissioner, stands disposed of as

compromised .Resultantly, the reference is 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:

2.6.2010

Presiding Judge,

Labour Court, Shimla.

__________

Ref.86/2006

7.6.2010

WORKERS UNION V/S M/S PROVIEW ELECTRONICS PVT LTD.

7.6.2010:-

Present:-

Shri Niranjan Verma, Advocate for the petitioner.

Sh Neeraj Maniktala, Advocate, for the respondent.

No Pw is present. For today , this case is fixed for the evidence of the petitioners as last

opportunity.

It has been stated by Shri Noranjan Verma, Advocate for the petitioners that amicable

settlement has already been effected between the parties. He further stated that now the petitioners do not

want to pursus with their claim, as referred, by the Labour Commissioner, by way of reference, made to this

Court.

To this effect, statement of the Learned counsel ,recorded separately.

On having considered the statement of Ld. Counsel, made on behalf of the petitioners, I am

satisfied that a lawful settlement has been effected between the parties, out of court. Accordingly, the claim

of the petitioners stands dismissed for having been compromised. Resultantly, the reference , made to this

Court, stands 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:

7.6.2010

Presiding Judge,

Labour Court, Shimla.

_________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA.

Ref no. 118 of 2004.

Instituted on 22.7.2004.

Decided on. 5.6.2010.

Krishan Chand S/o Shri Bratu Ram R/o Village Jachh, P.O Jassur, Tehsil Nurpur,

District Kangra, H.P.

..Petitioner.

VS.

The Managing Director, HP Agro Industries Corporation Ltd. Shaligram bhawan, Shimla-

171001.

..Respondent.

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

For petitioner: Shri P.P Chauhan, Advocate.

For respondent: Shri Atul Jhingan, Advocate.

AWARD

1. The reference for adjudication, sent by the appropriate government, is as under:-

"Whether the termination of services of Shri Krishan Chand S/o Shri Bratu Ram ex daily wages

welder by the Manging Director, HP Agro Industries Corporation Ltd. Shaligram Bhawan,

Khalini, Shimla 171001 w.e.f. 22.9.1992 without complying the provisions of the Industrial

disputes Act, 1947 is proper and justified? If not, to what relief of service benefits Shri Krishan

Chand is entitled to?”

Briefly, the case of the petitioner is that, he had been engaged as daily wage welder by the

respondent Corporation (hereinafter referred Corporation) since, 1983 and discharged his duties to the entire

satisfaction of his superiors. A case was filed by him in the Honble High Court where an undertaking was

given on behalf of the Corporation that the process for his regularization would be initiated. It is further

asserted that he had proceeded on two days casual lave w.e.f. 20.4.1990 to 21.4.1990, which had been duly

sanctioned by the Production Manager, Himagrico Implements & Tools Factory, Jachh (hereinafter referred

Production Manager). Thereafter, an application, for extension of the leave was sent/submitted, alongwith

the certificate of illness of his mother. Since, there was none to look after his ailing mother, he again applied

for extension of leave. Since, no information had been conveyed to him, he genuinely believed that his leave

had been duly sanctioned. It is further asserted that since his mother was suffering from mental ailment, she

could not be left un-attended. Despite, all an enquiry had been suddenly, initiated, against him, in the most

impartial manner and ultimately, his services were ordered to be terminated vide office order no. AIC-3-

83/84-5462 dated 22.9.1992 (hereinafter referred order), illegally and arbitrarily. Even, he had not been

afforded any opportunity of being heard before passing the order. The copy of enquiry report was not

supplied to him, before, terminating his services. Since, the order had been passed in an arbitrary and

malafide manner and also in violation of the Rules and Standing Orders, the same deserves to be quashed

and set aside and his services are required to be reengaged, with all the consequential benefits.

The petition has been contested on having raised preliminary objections including

maintainability and estoppel. On merits, it has been admitted that the petitioner had been engaged as daily

wager in the year, 1983 but it has been denied that he has been discharging his duties satisfactorily. In fact,

he was in the habit of remaining absent, from duty, on false and frivolous grounds. Till the termination of

the services of the petitioner, no order has been passed by the Honble High Court in respect of the

regularization of his services. Moreover, he has also not completed the requisite years of service. The two

days leave, on which the petitioner had proceeded, had been duly sanctioned by the Production Manager but

his application dated 24.4.1990, for the extension of the leave, had been rejected vide letter no. 229 dated

28.4.1990, by the Production Manager and that the petitioner was asked to resume his duties, immediately.

Despite that, he (petitioner) wrote another letter dated 3.5.1990, whereby he sought further extension of

leave on the ground of his mothers illness. In response to his such letter, the Production Manager, asked

him to join the duties, within two days, alongwith medical certificate, in respect of his ailing mother and also

to explain the reasons of his wilful absence, vide letter dated 24.5.1990. In that letter, the Production

Manager had clearly alleged that the petitioner had been engaged in private business, while serving the

Corporation and for this reason, intentionally avoiding his official duty by making false excuses. Instead of

joining his duties, he (petitioner) wrote another letter dated 28.5.1990 seeking further extension of leave.

The Production Manager, vide letter no. 425 dated 21.6.1990, again asked the petitioner to resume his duties

and also to submit the medical certificate but he (petitioner) did not bother. In these circumstances, the

Production Manager, referred the case to the Head Office for further action and in consequence thereof, a

notice, dated 12.7.1990, had been issued to the petitioner, asking him to resume his duties and to submit the

requisite medical certificate. Upon this, he submitted a certificate, procured from a Vaid alongwith his letter

dated 20.7.1990. The medical certificate appeared to be fictitious because it did not specify any period of

illness, nor the nature of illness and further the necessity of an attendant. The aforesaid letter was forwarded

by the Production Manager to the head Office alongwith his remarks that the petitioner had not joined the

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duties till 4.9.990 and that he was mostly seen at M/s Sharma Engineering Works, Bodh, P.O Bassa

Waziran, Tehsil Nurpur, District Kangra (hereinafter referred M/s Sharma Engineering Works), which is at a

distance of 1 ½ K.M from the factory premises, where the petitioner was employed. It is further asserted that

although, the petitioner had been issued letter on his address, Sharma Engineering Works, situated at a

distance of 1 ½ K.M, from his place of employment but he never approached the Production Manager,

personally and chose to correspond through post. When the petitioner did not resume his duties till

26.11.1990, despite repeated reminders, charge sheet, vide memorandum dated 26.11.1990, was served upon

him to which he filed reply dated 5.11.1990. This clearly goes to show that he had been given full

opportunity, of being heard. Thereafter, the disciplinary authority, ordered for holding an enquiry against

him. During the enquiry, he had been afforded ample opportunity to defend his case. Even, during the

enquiry proceedings he had sought one months time to produce medical certificate, regarding the illness of

his mother, from some Hospital of Amritsar, but he failed to do so. On the completion of the enquiry, vide

enquiry report dated 1.8.1991, the charges of wilful absence against him, were found to have been proved

and also that he had been engaged in private works, while in service with the Corporation. On the basis of

enquiry report, the disciplinary authority ordered the termination of his services vide order dated 22.9.1992.

It has been specifically denied that the termination orders had been issued for debarring the petitioner from

seeking regularization of his services. It has also been specifically denied that the petitioner is unemployed.

Other allegations denied.

No rejoinder filed. Pleadings of the parties, gave rise to the following issues, which were

struck on 25.10.2005.

Whether the services of Krishan Chand have been terminated by the respondent w.e.f.

22.9.1992? If so, its effect?

OPP…….

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

OPP……..

Whether the present petition is not maintainable?

OPR……..

Whether the petitioner is estopped from filing the petition due to his own acts and conduct?

OPR……..

Relief.

I have heard the learned counsel for the parties and have also gone through the record of the

case carefully.

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

findings on the aforesaid issues are as under.

Issue no.1 Yes.

Issue no.2 Entitled to reinstatement in service with seniority and continuity but without back

wages.

Issue no.3 No.

Issue no.4 No.

Relief.

Reference answered in favour of the petitioner and against the respondent, per operative

part of award.

REASONS FOR FINDINGS.

Issue No.1

In his evidence, the petitioner (PW-1), has filed his affidavit Ex. PW-1/A. He has supported

all he material facts, on oath, including that he had not been afforded an opportunity, of being heard, and

also that the copy of the enquiry report had not been supplied to him before passing the order of termination.

In the cross-examination, he has denied that on 26.11.1990, he was charge sheeted, which was duly served

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2807

upon him. He admitted that during the enquiry, he was personally present, and to have sought one months

time to produce medical certificate, before the Enquiry Officer and that the same, he did not produce. He

expressed his lack of knowledge as to whether he had filed reply to charge sheet dated 26.11.1990 but

admitted that enquiry had been conducted against him. He has specifically denied that the enquiry report had

been supplied to him but admitted that during the enquiry, his statement had been recorded. During enquiry,

he had admitted that, some times, he used to go to Sharma Engineering Works, in order to help his brother

which belongs to him (brother).

Shri G.D Kondal (RW-1), has stated to be conversant with the facts of the case and also that

he has brought the relevant record. According to him, the services of the petitioner had been terminated on

22.9.1992 on the ground of wilful absence. He further deposed that Shri R.K Sharma, had been appointed as

an Enquiry Officer and that he conducted the enquiry in which the petitioner had appeared and that he had

not opted to take the services of defence assistant. The petitioner had been charge sheeted for wilful absence

and in the enquiry, he had been found guilty for such. Before the Enquiry Officer, he had also admitted that

his brother runs a welding shop in Nurpur, where he (petitioner) used to work casually. The petitioner had

been afforded full opportunities to defend his case and the department also awaited for him for about 2 ½

years so that he may resume his duties but of no avail. No junior to the petitioner has been engaged after his

termination. In the cross examination, he admitted that the petitioner had deposed before the Enquiry Officer

that the medical certificate, of his mother, had been submitted by his father, in his office, who was a

government servant. He expressed his ignorance as to whether the petitioner had been given opportunity to

cross examine the departmental witnesses and that whether the enquiry report, alongwith show cause, had

been given to him after the conclusion of the enquiry.

At the very out set, I would like to point out that Shri G.D Kondal (RW-1), has not conducted

the enquiry against the petitioner. From his statement, it is highlighted that Shri R.K Sharma, Divisional

Manager, had been appointed as an Enquiry Officer, in order to prove the charges against the petitioner,

regarding his alleged wilful absence. It is not understandable as to why Shri R. K Sharma, Enquiry Officer,

who conducted the enquiry against the petitioner, has not been examined by the respondent. It has been

specifically alleged by the petitioner that during the enquiry, he had not been given proper hearing and this

fact he has supported in his affidavit Ex PW-1/A. In my considered view, it was Shri R.K Sharma, Enquiry

Officer, who could have stated before this Court, on oath, as to whether proper hearing had been afforded to

the petitioner, to defend himself, in the enquiry or not. I may observe that even the enquiry report has not

been tendered, in evidence, on behalf of the respondent. In fact, the respondent has not been tendered, any

documents, in respect of the alleged wilful absence, of the petitioner and the correspondence, regarding the

same. Undoubtedly, the documents, pertaining to the same, are on the file but those have neither been

tendered nor Shri G.D Kondal (RW-1) placed reliance on those documents, during the recording of his

statement, by getting them either exhibited or marked. It has been specifically alleged by the petitioner that

he had not been supplied with the copy of the enquiry report before this order, qua his termination, was

passed. Even, Shri G.D Kondal, (RW-1), has not stated that the copy of the enquiry report, alongwith show

cause notice, had been supplied to the petitioner. There is also no document on record which could go to

show that the petitioner had been apprised of his right, to be defended by an Assistant (Defence Assistant)

and that he had refused to avail the services of such Assistant. There is further no material, on the file, which

could go to show that the petitioner had been afforded opportunity to cross examine the witnesses of the

Corporation and that his explanation had been obtained in respect of the incriminating circumstances, which

had come, against him, in the enquiry. This, clearly shows that the enquiry had not been conducted, against

him, in consonance with the principle of natural justice. It has been held by the Hon’ble Supreme Court in

2010 LLR 494, LIC & another Vs. Rampal Singh that:-

“When neither copy of enquiry report had been given nor reasons for recording guilt disclosed in

the show cause notice, the courts below had rightly held that the respondent was denied

opportunity of hearing and the whole proceedings was thus vitiated”.

10. In the instant case, from the affidavit Ex. RW-1/A, the petitioner (PW-1), has discharged the

onus which was upon him to prove that his services had been wrongly terminated by the respondent w.e.f.

22.9.992 as he was not afforded opportunity of being heard as per the principle of natural justice.

Consequently, on the basis of evidence led by the petitioner and also failure of the respondent to have

brought the relevant record qua enquiry proceedings, including the enquiry report, I, without hesitation hold

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that the services of the petitioner had been wrongly terminated by the respondent vide order dated 22.9.1992.

Accordingly, my answer to this issue is in “Yes”.

Issue No.2

11. Admittedly, the petitioner had proceeded on two days leave from 20.4.1990 to 21.4.1990

which had been sanctioned in his favour. It is also not disputed fact that thereafter, he did not resume the

duties for the reason that he kept on writing the Production Manager/Department for extending the leave on

the pretext that his mother was ill and that there was none to look after her. From the record, it is further

borne out that till 22.9.1992 when his services were terminated, he did not join his duties except to have

appeared before the Enquiry Officer, as is evident from his cross examination, when appeared in the witness

box, as PW-1. When regard is given to the affidavit of the petitioner, which is Ex. PW-1/A, nothing such has

come which may go to show that he is not gainfully employed. On the contrary, his cross examination, goes

to show that he used to work with his brother in Sharma Engineering Works in order to help him. His such

version indicates that he had not been un-employed either during the period, when he remained absent from

duty, in order to allegedly look after his ailing mother, and also after his termination. In these circumstances,

it is not justified that he should be granted back wages. However, since his termination vide order dated

22.9.1992 has been held to be illegal and unlawful, he deserves to be reinstated, with seniority and

continuity, in service but without back wages. Thus, my answer to this issue is in “Yes” accordingly.

Issue No. 3

12. No evidence has been led by the respondent in order to show as to why this petition is not

maintainable. The claim has been filed by the petitioner in pursuance to the reference which has been made

to this Court by the Labour Commissioner. In the absence of anything to the contrary, I hold this petition to

be maintainable and my to this issue is in “No”.

Issue No. 4

13. Although, an objection has been taken by the respondent that the petitioner is estopped from

filing the petition due to his act and conduct but in support thereof, no specific evidence has been led. Even,

Shri G.D Kondal, (RW-1), has not stated that the petitioner is estopped from filing the claim, on account of

his own act & conduct. Thus, by holding that the petitioner is not estopped from filing this petition, my

answer to this issue is in “No”.

RELIEF

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and it is

ordered that he(petitioner) be reinstated in service, at same place and on the same post on which he had been

working prior to his termination, with seniority and continuity but without back wages, from the date of his

termination i.e 22.9.1992. Consequently, the reference stands answered in favour of the petitioner and

against the respondent. 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 this day of 5th June, 2010 in the presence of parties counsels.

By order,

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

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2809

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA

Ref no. 6 of 2009.

Instituted on 17.2.2009.

Decided on. 3.6.2010.

Bhagwan Dass S/o Shri Devi Saran R/o VillageGawahi, P.O Kiarkoti, Tehsil & District

Shimla, HP. through next friend Shri Hari Ram S/Shri Devi Saran(brother).

..Petitioner.

VS.

The Executive Engineer, (B&R), Municipal Corporation, Shimla, HP.

..Respondent.

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

For petitioner: Shri Harinder Verma, Advocate.

For respondent: Shri Sandeep Dutta, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:-

"Whether the termination of services of Shri Bhagwan Dass S/o Shri Devi Saran, Village

Gawahi, P.O Kiarkoti, Tehsil & District Shimla, HP by the Executive Engineer, (B&R)

Municipal Corporation, Shimla w.e.f. 21.11.2005 without complying with the provisions of

the Industrial Disputes Act, 1947 is leagal and justified? If not, what relief of service

benefits i.e reinstatement, compensation and seniority, the above workmen is entitled to

from the employer?”

Petitioner, Shri Bhagwan Dass, a deaf and dumb, has filed this claim petition through his next

friend Shri Hari Ram.

Be it be noted that for getting appointed the next friend/Gardiner, an application under order

32 rule 1 CPC was also filed.

Facts, in brief, are that the petitioner had been engaged as beldar on daily wages in the office

of respondent on 21.4.1997 and worked as such, continuously till 21.5.2005, when his services were

terminated, without giving any notice as required under section 25F of the Industrial Disputes Act, 1947

(hereinafter referred Act). In each calendar year, he had completed 240 days and performed his duties with

full sincerity and devotion to the satisfaction of his superiors. It is further averred that the respondent has

engaged fresh persons and that the juniors to the petitioner are still working. Since, his services had been

terminated in violation of the provisions of the Act, he deserves to be reinstated in service with all

consequential benefits.

Petition has been contested on having raised various preliminary objections including

maintainability and that the same is bad for want of issuance of mandatory notice under section 392 of the

HP Municipal Corporation, Act. On merits, it has been denied that the petitioner had worked continuously

till 21.11.2005 as alleged and that his services had been terminated. In fact, he had left the job on

20.11.2005, on his own and thereafter, remained absent for about fourteen months. Other allegations denied.

Pleadings of the parties gave rise to the following issues, which were struck on 16.11.2009.

Whether the termination of services of petitioner by the respondent w.e.f. 21.11.2005 without

complying with the provisions of Industrial Disputes Act, 1947 is illegal and unjustified as

alleged?

OPP…….

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If issue no.1 is proved, to what relief, of service benefits, the petitioner is entitled to?

OPP……..

Whether the claim is neither competent nor maintainable in the present form?

OPR……..

Whether the claim is bad for notice under section 392 of the HP MC Act as alleged?

OPR…….

Relief.

I have heard the learned counsels for the parties and have also gone through the record of the

case carefully.

For the reasons to be recorded hereinafter while discussing 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, in service but without back

wages.

Issue no.3

No.

Issue no.4

No.

Relief.

Reference answered in favour of the petitioner and against the respondent, per

operative part of award.

REASONS FOR FINDINGS

Issue No.1

The contention of the petitioner, through his next friend, is to this effect that his services had

been terminated without notice and compensation, despite the fact that, he had completed 240 days in the

twelve calendar months preceding his termination. Further, it has also been asserted that juniors to him are

still in service.

10. On the contrary, the defence plea is that the petitioner had left the job, on his own, and that his

services had never been terminated.

11. Shri Hari Ram (PW-1), is the next friend of the petitioner. He has supported this fact that for

the petitioner being deaf and dumb, he is his guardian, being the real brother. With the facts of the case, he is

well conversant. His brother (petitioner), had been engaged as beldar on daily wages in April, 1997 and he

continued as such till 21.5.2005 when his services were terminated, without any notice and paying

compensation. He had accompanied the petitioner to the office of M.C Shimla for his reinstatement but of no

avail. In the year, preceding his termination, the petitioner had completed 240 days. In the cross

examination, he expressed his ignorance that the petitioner had abandoned the job, on his own.

12. Er. Rakesh Verma (PW-2), has proved the muster roll Ex. PA and seniority list Ex. PB, from

the original record, brought by him. In the cross examination, he has admitted that the petitioner had

abandoned the job on his own.

13. Shri Rakesh Verma (J.E, Municipal Corporation), has also been examined by the respondent

as its witness. He supports this fact that the petitioner had been engaged as daily wage beldar on 21.4.1997

and that he worked till 21.11.2005 when he left the job, on his own, without any intimation. The mandays

chart of the petitioner is Ex. RA and that in the seniority list, the name of the petitioner has been shown at

serial no.175. Vide Ex. RB, he (petitioner), had approached for his reengagement but due to non availability

of work, he could not be reengaged. Before, 17.1.2007, the petitioner had not approached the respondent. In

the cross examination, he has stated that Ex. PR-1 is the muster roll, pertaining to the petitioner whereby he

had completed 240 days, preceding twelve calendar months and that as per Ex. PB, the petitioner had

completed 259 days in the year, 2005. Neither any notice had been issued to the petitioner nor any

compensation paid to him.

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2811

14. From the Ex. PR-1 (muster roll) and Ex. PB, it stands duly proved that in the twelve preceding

months, from the date of his alleged termination, the petitioner had completed more than 240 days.

Although, the defence version is to this effect that he (petitioner) had abandoned the job on his own but there

is no convincing evidence, on record, to prove this fact. From the documentary as well as oral evidence, it

stands duly proved that the petitioner had neither been issued any notice nor paid compensation, before his

services were terminated and that in the twelve preceding months, he had completed 240 days. It was

obligatory upon the respondent to have complied with the requirements of section 25F of the Act. For the

failure of the respondent, to have complied with the provisions of section 25F of the Act, the termination of

services of the petitioner w.e.f. 21.11.2005 is held to be illegal and unjustified. Consequently, my answer to

this issue is in “Yes”.

Issue No. 2

15. By giving due regard to the above mentioned facts and circumstances, particularly, that the

petitioner has failed to prove that he has not been gainfully employed, after his termination, I without

hesitation hold that he is not entitled for back wages. However, since his services had been terminated

against the provisions of sections 25F of the Act, he is entitled to be reinstated, with seniority and continuity

in service but without back wages. Thus, my answer to this issue is in “Yes” accordingly.

Issue No. 3

16. Consequent upon the reference, which has been made to this Court, the petitioner, through his

next friend (Hari Singh,brother), has filed statement of claim. It is not understandable as to why the claim of

the petitioner is neither competent nor maintainable. Moreover, at the time of arguments, it could not been

explained on behalf of the respondent, as to why, the claim of the petitioner is not maintainable. Thus, my

answer to this issue is in “No”.

Issue No. 4

17. I may mention that the petitioner, through his next friend, has not filed his statement of claim

before this Court directly. The same was filed consequent upon the reference having been made to this Court

by Labour Commissioner. When such is the position, it cannot be said that the claim of the petitioner is bad

for want of notice under section 392 of the HP MC, Act. It is also to be observed that this Court is required

to answer the reference which has been made to it by the Labour Commissioner. Accordingly, my answer to

this issue is in “No”.

RELIEF

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and it is

ordered that he(petitioner) be reinstated in service, with seniority and continuity but without back wages,

from the date of his termination i.e w.e.f. 21.11.2005. Consequently, the reference stands answered in favour

of the petitioner and against the respondent. 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 this day of 3rd June, 2010 in the presence of parties counsels.

By order,

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

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IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA CAMP AT NAHAN

Ref no. 14 of 2009.

Instituted on 4.4.2009.

Decided on. 25.6.2010.

Suresh Chand S/o Himat Singh, R/o Village Talpura, P.O Palio, Tehsil Nahan, District

Sirmour, HP.

..Petitioner.

VS.

1. The Deputy Commissioner, District Sirmour at Nahan-cum-Chairman, Maha Mai

Balasundri, Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP.

2. The SDM, Nahan, District Sirmour-cum-Administrator, Maha Mai Balasundri,

Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP.

..Respondents.

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

For petitioner: Shri R.K Khidta, Advocate.

For respondent: Shri A.K Rewal, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

“Whether termination of the services of Shri Suresh Chand S/o Shri Himat Singh, by the

Chairman-cum-Deputy Commissioner, Sirmour at Nahan Maha Mai Balasundri, Trilokpur

Temple, Trust, Tehsil Nahan, District Sirmour and ii) Administrator-cum-SDM Nahan,

Maha Mai Baladundri, Trilokpur Temple Trust, Tehsil Nahan District Sirmour, HP

without complying the mandatory provisions of the Industrial Disputes Act, 1947 I legal

and justified? If not, what relief of service benefits, including seniority, back wages and

compensation, the above aggrieved workman is entitled to”.

In nutshell, the case of the petitioner is that he was engaged by the Temple Trust Committee,

Maha Mai Balasundri, Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP, w.e.f. March, 1995.

The respondent used to engage the petitioner for five to six months in a year and that he worked as such till

2003. In the month of 2004, he (petitioner) was engaged as beldar, on daily wages and worked as such till

December, 2004. In the month of Jan. 2005, he had been engaged as Mason, on daily wage basis and worked

as such till 1.7.2007. On 2.7.2007, his services were orally terminated, by the Temple Administrator, without

serving any notice and paying retrenchment compensation, in violation of the Provisions of the Industrial

Disputes Act, 1947 (hereinafter referred Act). Initially there was a Temple Committee which, in the year,

1999, was taken over by the Trust, which is headed by its Chairman (Deputy Commissioner). Thus, from the

year 2004, the Temple Administration, has been under the Trust and respondent no.1, its Chairman, and

respondent no.2, the Administrator. It is further averred that the petitioner had completed 240 days in each

calendar year. Moreover, juniors to him namely S/Shri Ramesh, Prem Singh, Chaman & others are still

working. In this way, he deserves to be reinstated with all the consequential benefits as his services have

been terminated in violation of the mandatory provisions of the Act.

The claim of the petitioner has been contested on having raised preliminary objections

including jurisdiction. On merits, it has been asserted that the petitioner had been engaged as casual worker

by the respondents during the construction of their building. Since, new industries were being set up, at Kala

Amb, he (petitioner) left the work, on his own, in order to work in the industries, on more wages. It has been

denied that the services of the petitioner had been terminated by the respondents. Other allegations denied.

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2813

By filing rejoinder, the petitioner has reaffirmed his own allegations by denying those of the

respondent.

Pleadings of the parties gave rise to the following issues which were struck on 28.8.2009.

Whether the termination of the services of the petitioner by Chairman-cum-Deputy

Commissioner, Maha Mai Balasundri, Temple Trust, Tehsil Nahan & Administrator-cum-

SDM, Nahan Maha Mai Balasundri, Temple Trust, Nahan, is illegal and unjustified as

alleged?

OPP…….

If issue no.1 is proved, to what relief of service benefits including seniority and back wages,

the petitioner is entitled to?

OPP……..

Whether this court has no jurisdiction to try this reference?

OPR……..

Relief.

I have heard the learned counsel for the parties and have also gone through the record of the

case carefully.

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

findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement in service with seniority and continuity but without back

wages.

Issue no.3

No.

Relief.

Reference answered in favour of the petitioner and against the respondent, per

operative part of award.

REASONS FOR FINDINGS

Issue No. 1

Ld. Counsel for the petitioner has submitted that in order to defeat the provisions of the Act,

so that the petitioner may not complete 240 days, fictional breaks were being given. He further urged that

since the petitioner had remained in work for such a long period, it clearly goes to show that the work was of

continuous/permanent nature. He also submitted that since the services of the petitioner had been disengaged

without notice and retrenchment compensation, the same is illegal and unjustified for being in violation of

the provisions of the Act. Further, as it stands proved on record that the juniors to the petitioner have been

engaged/retained in work, this also goes to show that there have been violation of the provisions of section

25G & H of the Act. Another contention, which has been advanced by the Ld. counsel is to this effect that

since the respondent has not stepped into the witness box, there is no such material, whatsoever, on record,

which could go to prove its defence. By merely examining one of the workers namely Shri Nathu Ram

(RW-1), the defence version that the petitioner had left the job, on his own, in order to work in some private

firm, is not proved.

On the other hand, Ld. Counsel appearing on behalf of the respondent has urged with

vehemence that the services of the petitioner had been engaged as a casual worker and that he left the work,

on his own. Moreover, now the work stands completed. Thus, when the petitioner, on his own, had left the

job and also that the work is complete, it cannot be said that there has been any violation of the provisions of

the Act. In support of his contentions, the Ld. Counsel has relied upon 2008 ACJ 1700, Om Prakash Batish

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Vs. Ranjit and others.Latest HLJ 2006 HP 116, State of HP & others Vs. Presiding Judge & another and

Latest HLJ 2006 834, State of HP & Ors. Vs. Bir Singh and another.

10. Undoubtedly, Ld. Counsel for the respondent, by putting reliance on 2008 ACJ 1700 (supra)

has urged that a person, who is employed for a limited period for carrying out repair work in a residential

house, is not a workman but this ruling is of no help to the respondent because in the instant case it has not

been proved that the services of the petitioner had been engaged for doing a work, which was for

short/limited period. On the contrary, it is quite evident that the work, being performed by him (petitioner),

was of continuous/permanent nature.

11. The stand of the respondent is that the petitioner was a casual labourer and that he had

abandoned the work, on his own, in order to work on higher wages in the factories, being set up at Kala

Amb. The respondents in support of their defence have examined Shri Nathu Ram (RW-1), who tendered his

affidavit Ex. R-1 in his chief examination. In his affidavit, he has stated that the petitioner had left the

Temple Construction work, on his own, as he was employed by a private unit, M/s Pritam Electricals Pvt.

Ltd. at Kala Amb. When the Temple started new work, he (petitioner) had been sent a message through him

(RW-1), to join the job but of no avail. In the cross examination, he stated that for the last seven years, he

has been working as Mason with the Temple Trust and that the petitioner had also been working alongwith

him. He admitted that he (petitioner) had been engaged in the year, 1995. No written order/notice had been

sent through him, to the petitioner, to join his duties. He admitted that his version is to this effect, that all the

workers (about 100), had been terminated by the trust.

12. From the evidence, which has been led by the respondents, it has not been proved that the

petitioner had abandoned the job, on his own. I may mention that the respondents have neither taken any

steps to produce any documentary evidence that the petitioner has been employed in private unit at Kala

Amb nor examined any person from that unit in support thereof. In these circumstances, the case law relied

upon by the respondent (supra), has no applicability in the present case. It is also to be noted that the Ld.

Counsel for the petitioner has rightly argued that since, the respondents have neither examined the Chairman

or the Administrator of the respondents Trust, its defence that the petitioner had abandoned the job, on his

own, is also not proved.

13. In his affidavit, Ex. P/A, the petitioner (PW-1), has supported all the material facts, on oath,

including that he had worked for 240 days in each calendar year before his services had been terminated. He

has denied that his services had been engaged, subject to the availability of work and that at present, he has

been working with private Industries at Kala Amb.

14. According to Shri Harish Sharma (PW-2), Assistant Manager, Accounts, in the Temple Trust,

the petitioner had been engaged as Mason in April, 2004 and worked till 1.7.2007, when his services had

been disengaged, after the completion of work, without notice and compensation. S/Shri Jagat Singh,

Chetan, Sita Ram and others are junior to the petitioner and that they are still working with the respondent.

In the cross examination, he admitted that the petitioner had not been given regular appointment and that he

had left the job, on his own. He further admitted that the petitioner had not completed 240 days in a calendar

year.

15. The petitioner has led positive oral evidence to prove his assertion that he had completed 240

days in the twelve calendar months preceding his termination. Even, from the statement of Shri Harish

Sharma (PW-2), it is revealed that he (petitioner) had worked from Feb., 2004 to 30.6.2007. In the affidavit

of Shri Nathu Ram (RW-1), it has not been stated that the petitioner had not completed 240 days in the

twelve preceding months from the date of his termination. Thus, I hold that the petitioner has succeeded in

proving that he had completed 240 days in the twelve calendar months preceding his termination.

16. From the statement of Shri Harish Sharma (PW-2), it is further borne out that juniors to the

petitioner are still working with the respondent-Trust. Although, the contention of the respondents is to this

effect that the petitioner had left the job, on his own, in order to work in private factories, on higher wages

but there is no reliable and cogent evidence, on record, to prove this assertion, particularly, when the

evidence, led by the petitioner, is convincing and reliable. It has been held by our own Hon'ble High Court

in latest HLJ 2007 (HP) 903 State of HP & Others Vs. Bhatag Ram & Another. that:-

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2815

“Plea of abandonment of job- merely raising the plea of abandonment is nothing but has to be

established on the basis of facts. No facts led to substantiate the plea.”

17. From the evidence on record, it also stands proved that the juniors to the petitioner are still in

job. When such is the position, the termination of the services of the petitioner is in violation of the

provisions of section 25G & H of the Act. It has been held by our own Honble High Court incase titled as

State of HP & Others V/s Bhatag Ram & Anr. as reported in latest HLJ 2007 (HP) 903. 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 25-G & 25-H of the Act.”

18. Since, on the record, it stands established that juniors to the petitioner, as mentioned above,

are still in job, his termination, being in violation of the provisions of section 25 G & H of the Act, is illegal

and unjustified and also for want of compliance of section 25F. Consequently, my answer to this issue is in

“Yes” accordingly.

Issue No. 2

19. Ld. Counsel for the petitioner has contended with vehemence that the petitioner is entitled for

full back wages because his services had been terminated illegally and in unjustified manner. On the other

hand, it has been argued on behalf of the respondents that since the petitioner has failed to prove that he is

not gainfully employed, he cannot be granted back wages. In support of his such contention, Ld. counsel

placed reliance Latest HLJ 2007 (HP) 306, Pawan Kumar Vs. HP State Industrial Dev. Corporation &

Aar in which it has been held that “a workman is not entitle for back wages unless establish that he is not

gainfully employed for which purpose, the burden is on him”. Ld. Counsel has also relied upon 2010 (1)

SLJ (SC), 70, M/s Reetu Marbles Vs. Prabhakant Shukla in which it has been held that “Payment of full

back wages upon an order of termination, being declared illegal, cannot be granted mechanically”. It has

been further held that “It does not automatically follow that reinstatement must be accompanied by

payment of full back wages even for the period when the workman remained out of service and

contributed little or nothing to the Industry”.

20. In the instant case, the petitioner has not led any convincing and reliable evidence that after

his disengagement/retrenchment, he has not been gainfully employed. Moreover, keeping inview the period

for which he had remained engaged and also the legal position, as stated above, I am of the considered view

that he (petitioner) is not entitled to be granted back wages. However, since his services were terminated

against the provisions of the Act, he is entitled to be reinstated, with seniority and continuity in service but

without back wages. Thus, my answer to this issue is in “Yes” accordingly.

Issue No. 3

21. An objection has been taken by the respondent that this court has no jurisdiction to try this

reference as the respondents Trust is not an Industry but this objection does not hold good in view of the law

laid down by the Constitutional Bench of Hon’ble Supreme Court, in 1978 (2) SCC 213,Banglore Water

Supply and Sewerage Board Vs. A. Rajappa in which it has been held that educational institutions and

research centres are Industries. It has further been held that a University is an Industry particularly with

respect to small workers like Mali, Chowkidars, Carpenters etc. and as such on the strength of this judgment,

it can be safely concluded that the respondents are governed by the Act, especially in case of the daily wage

workers. Consequently, my answer to this issue is in “No”.

RELIEF

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is allowed and it is

ordered that he(petitioner) be reinstated in service, with seniority and continuity but without back wages,

from the date of his termination i.e 2.7.2007 Consequently, the reference stands answered in favour of the

petitioner and against the respondent. Let a copy of this award be sent to the appropriate government for

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

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Announced in the open court today this day of 25th June, 2010 in the presence of parties counsels.

By order,

A.S JASWAL,

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

Camp at Nahan.

_____________

IN THE COURT OF A.S JASWAL, PRESIDING JUDGE, HP INDUSTRIAL TRIBUNAL-CUM-

LABOUR COURT, SHIMLA CAMP AT NAHAN

Ref no. 15 of 2009.

Instituted on 4.4.2009.

Decided on. 25.6.2010.

Dhuni Chand S/o Shri Parkash Chand, R/o Village Katola, P.O Sainwala, Tehsil Nahan,

District Sirmour, HP.

..Petitioner.

VS.

1. The Deputy Commissioner, District Sirmour at Nahan-cum-Chairman, Maha Mai

Balasundri, Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP.

2. The SDM, Nahan, District Sirmour-cum-Administrator, Maha Mai Balasundri,

Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP.

..Respondents.

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

For petitioner: Shri R.K Khidta, Advocate.

For respondent: Shri A.K Rewal, Advocate.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

“Whether termination of the services of Shri Dhuni chand S/o Shri Parkash Chand, by

the Chairman-cum-Deputy Commissioner, Sirmour at Nahan Maha Mai Balasundri,

Trilokpur Temple, Trust, Tehsil Nahan, District Sirmour and ii) Administrator-cum-SDM

Nahan, Maha Mai Baladundri, Trilokpur Temple Trust, Tehsil Nahan District Sirmour,

HP without complying the mandatory provisions of the Industrial Disputes Act, 1947 is

legal and justified? If not, what relief of service benefits, including seniority, back wages

and compensation, the above aggrieved workman is entitled to”.

In nutshell, the case of the petitioner is that he was engaged as Mason, by the Temple Trust

Committee, Maha Mai Balasundri, Trilokpur, Temple Trust, Tehsil Nahan, District Sirmour, HP, on daily

wages in the month of Feb., 2004 and worked as such till 30.6.2007. On 1.7.2007, his services were orally

terminated, by the Temple Administrator, without serving any notice and paying retrenchment

compensation, in violation of the Provisions of the Industrial Disputes Act, 1947 (hereinafter referred Act).

Initially there was a Temple Committee which, in the year, 1999, was taken over by the Trust, which is

headed by its Chairman (Deputy Commissioner). Thus, from the year 2004, the Temple Administration, has

been under the Trust and respondent no.1, its Chairman, and respondent no.2, the Administrator. It is further

averred that the petitioner had completed 240 days in each calendar year. Moreover, juniors to him namely

S/Shri Ramesh, Chaman & Prem Singh are still working. In this way, he deserves to be reinstated with all

jkti=] fgekpy izns'k] 7 vxLr] 2010@16 Jko.k] 1932

2817

the consequential benefits as his services have been terminated in violation of the mandatory provisions of

the Act.

The claim of the petitioner has been contested on having raised preliminary objections

including jurisdiction. On merits, it has been asserted that the petitioner had been engaged as casual worker

by the respondents during the construction of their building. Since, new industries were being set up, at Kala

Amb, he (petitioner) left the work, on his own, in order to work in the industries, on more wages. It has been

denied that the services of the petitioner had been terminated by the respondents. Other allegations denied.

By filing rejoinder, the petitioner has reaffirmed his own allegations by denying those of the

respondent.

Pleadings of the parties gave rise to the following issues which were struck on 28.8.2009.

Whether the termination of the services of the petitioner by Chairman-cum-Deputy

Commissioner, Maha Mai Balasundri, Temple Trust, Tehsil Nahan & Administrator-cum-

SDM, Nahan Maha Mai Balasundri, Temple Trust, Nahan, is illegal and unjustified as

alleged?

OPP…….

If issue no.1 is proved, to what relief of service benefits including seniority and back wages,

the petitioner is entitled to?

OPP……..

Whether this court has no jurisdiction to try this reference?

OPR……..

Relief.

I have heard the learned counsel for the parties and have also gone through the record of the

case carefully.

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

findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement in service with seniority and continuity but without back

wages.

Issue no.3

No.

Relief.

Reference answered in favour of the petitioner and against the respondent, per

operative part of award.

REASONS FOR FINDINGS.

Issue No. 1