jkti=] fgekpy izns'k

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

f”keyk]

f”keyk] cq/k

cq/k

cq/kokjkjkjkj] ] ] ] 11111111 vxLr

vxLr

vxLr] 2010

] 2010

] 2010@20202020 Jko.k]

Jko.k]

Jko.k] 1932

1932

fgekpy izns'k ljdkj

STATE ELECTION COMMISSION HIMACHAL PRADESH

vkeZlMsy] f'keyk&171002, Armsdale, Shimla-171002 Tel. 0177-2620152, 2620159, 2620154, Fax. 2620152

NOTIFICATION

10th August, 2010

No. SEC: 13-89/2009- 2269-83.—In exercise of the power vested in it under Article 243-

ZA of the constitution of India, Section 10(2) read with Section 22 of the H.P. Municipal (as

amended vide Act. No. 12 of 2010) Act, 1994 and Rule 24 of the H.P. Municipal Election Rule,

1994, The State Election Commission hereby specifies office wise election symbols for allotment

to candidates in the elections to Municipal Councils and Nagar Panchayats in H.P.:—

(A)

Symbol to be allotted to candidates for Member :

Sr.

No.

Name of Symbols

Sr.

No.

Name of Symbols

Hand Pump

gS.M iEi

14.

Lock & Key

rkyk vkSj pkch

Apple

lsc

15.

Television

VSyhohtu

99&jkti=@2010&11&8&2010

¼3123½

3124

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

Sewing Machine

flykbZ e'khu

16.

Ceiling Fan

Nr dk ia[kk

Aeroplane

tgkt

17.

Cot

pkjikbZ

Letter Box

ySVj ckSDl

18.

Spoon

peEp

Railway Engine

jsy dk bZatu

19.

Gas Cylinder

xSl flyS.Mj

Table

est

20.

Ball

xSan

Bench

cSUp

21.

Camera

dSejk

Bus

22.

Chair

dqlhZ

10.

Bat

cYyk

23.

Car

dkj

11.

Pressure Cooker

izS'kj dqdj

24.

Cup-Plate

di&IysV

12.

Book

fdrkc

25.

Almirah

vyekjh

13.

Kite

irax

(B)

Symbol to be allotted to candidates for Vice-President:

Sr.

No.

Name of Symbols

Sr.

No.

Name of Symbols

Star

flrkjk

13.

Black Board

';keiV

Rising Sun

p<rk lwjt

14.

Globe

xyksc

Moon

pk¡n

15.

Water Melon

rjcwt

Radio

jsfM;ks

16.

Mango

vke

Jeep

thi

17.

Baby Doll

xqfM+;k

Balloon

xqCckjk

18.

Umbrella

Nkrk

Hockey & Ball

gkdh vkSj xsan

19.

Tractor

VSªDVj

Ladder

lh<+h

20.

Wheel Barrow

BsykxkM+h

Drum

uxkM+k

21.

Dancing Girl

ukprh yM+dh

10.

Spade

QkoM+k

22.

Tabla (Two)

nks rcys

11.

Candle

eksecrh

23.

Electric Bulb

fctyh dk cYc

12.

Axe

dqYgkM+h

24.

Hurricane Lamp

ykyVsu

25.

Violin

lkjaxh

(C)

Symbol to be allotted to candidates for President:

Sr.

No.

Name of Symbols

Sr.

No.

Name of Symbols

Flower

Qwy

13.

Soldier

flikgh

Fort

fdyk

14.

Table Fan

est dk ia[kk

Harmonium

gkjeksfu;e

15.

Whistle

lhVh

Table Lamp

Vscy ySEi

16.

Box

lUnwd

Bow & Arrow

/kuq"k ck.k

17.

Ring

vaxwBh

Dholak

<ksyd

18.

Scissors

dSaph

Banana

dsyk

19.

Comb

da?kh

Bucket

ckYVh

20.

Carrot

xktj

Coconut Tree

ukfj;y dk isM+

21.

Wrist Watch

gkFk dh ?kM+h

10.

Pencil

iaSfly

22.

Jug

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3125

11.

Sword

ryokj

23.

Truck

Vªd

12.

Motorcycle

eksVj lkbZdy

24.

Diesel Pump

Mhty iEi

25.

Coconut

ukfj;y

This is in suppercession of earlier notification No. SEC-13-78/2002-1592-1615 dated

8th,Oct,2002.

By order,

DEV SWARUP,

State Election Commissioner.

____________

LABOUR AND EMPLOYMENT

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL,

DHARAMSHALA, H.P.

Ref No. : 175/2006

Date of Institution : 4.12.2006

Date of decision : 28.2.2009

Shri Angat Kumar S/o Shri Gauri Dutt Village Bari, P.O. Khurahal, Tehsil Sunder Nagar, District Mandi, H.P.

….Petitioner

Versus

The Divisional Forest Officer, Suket Forest Division, Sunder Nagar, Distt. Mandi, H.P.

….Respondent

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. L.B. Sharma, Adv.

For the Respondent :

Sh. H.S. Dhiman, Ld. Dy.D.A.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether the termination of services of Shri Angat Kumar S/o Shri Gauri Ram workman by the

Divisional Forest Officer, Suket Forest Division Sunder Nagar, District Mandi, H.P. w.e.f. October,

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?”

On notice, the petitioner filed his statement of claim wherein he averred that he was engaged as daily

waged Beldar by the respondent in Kangoo Range of Sundernagar Forest Division in June, 1999 and worked as such

upto November, 2003. Alleging the respondent to have suddenly terminated his services orally, the petitioner further

averred that he was not allowed to work for 240 days in any year, even though he had completed 240 days in „each

calendar year.. The respondent, according to the petitioner, had given artificial breaks in his service and retained certain

workmen, who were junior to him, at the time his services were dispensed with. The petitioner, it is further averred,

requested the respondent to re-engage him, but without effect. Left with no option, he later raised an industrial dispute,

which is encompassed in the reference in question. He prays for a direction to the respondent to reinstate him in the

same capacity as in which he was working at the time his services were dispensed with. He also prays for the grant of

full back-wages and other consequential service benefits including continuity of service.

The respondent in his reply denied the petitioner.s claim of having been engaged as daily waged Beldar

in June, 1999. It is averred that the petitioner was engaged as daily waged Beldar in Kangoo Range of Sundernagar

Forest Division in January, 2000, and that he had completed more than 240 days till October, 2003. The petitioner, it is

further averred, had worked only for 8 days in 2004 and 5 days in 2005, and did not turn up in 2006 and 2007. By a

letter dated July 25, 2004, which was served upon the petitioner on July 27, 2004 through a Beldar namely Ashwani

Kumar, he (petitioner) was called upon to join his work, but he intentionally „avoided to join his work.. Refuting the

3126

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

petitioner.s allegation of fictional breaks, the respondent averred that he (petitioner) had not turned up to join his work

„at his own sweet will. and thus lost his seniority as daily waged worker. The petitioner.s allegation that certain

workers junior to him were retained in service, was also refuted by the respondent. On the basis of these averments the

respondent prayed for dismissal of the reference.

The petitioner in his rejoinder controverted the contentions of the respondent and reiterated his stand

taken in the claim petition.

On the pleadings of the parties, the following issues were framed for determination:

Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief of

service benefits and the amount of compensation the petitioner is entitled to?

OPP

Whether the petition is not maintainable.

OPR

Whether the petitioner has no locus standi to file the present petition.

OPR

Whether the petitioner has no cause of action against the respondent.

OPR

Whether there is no violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947.

OPR

Relief.

For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

Yes, he is entitled to reinstatement and continuity of service from the date his retrenchment.

Issue 2 :

Issue 3 :

Issue 4 :

Issue 5 : No

Issue 6 :

The petition allowed partly per operative part of the award.

REASONS FOR FINDINGS

Issues 1 And 5

These issues being inter-linked are taken up together.

The petitioner.s claim of having been engaged by the respondent as daily waged Beldar in June, 1999

does not appear to be having a ring of truth in view of the documentary evidence led by the respondent. The mandays

chart Ex. RW1/B the correctness of which is not disputed by the petitioner, is indicative of the latter having been

engaged by the respondent as daily waged Beldar in January, 2000. The respondent.s claim that the petitioner was

engaged as daily waged Beldar in January, 2000, therefore deserves acceptance and is accepted.

The petitioner.s services are alleged to have been terminated by the respondent orally in October, 2000.

This allegation, to my thinking, appears to be true in view of the mandays chart Ex. RW1/B, which is indicative of the

petitioner having worked upto the month of October, 2003. The Ld. Dy. District Attorney appearing for the respondent

contends with vehemence that the petitioner, who was a casual worker, had abandoned the job on his own in October,

2003, and that in view of this position, no provision of the Industrial Disputes Act, 1947 (the Act, for short) can be said

to have been violated. I am not impressed with this contention. Nowhere in his pleadings did the respondent aver that

the petitioner had abandoned the job on his own in October, 2003. Rather what is inter alia averred in the respondent.s

reply to the petitioner.s statement of claim is:

“……In fact, the applicant was engaged w.e.f. January, 2000 as per record maintained by the

respondents and he completed more than 240 days till October, 2003, but the applicant only worked for

8 days during the year 2004 and for 5 days during the year 2005 and during the year 2006 & 2007, the

applicant never turned up on work at his own volition. …….From the Mandays chart attached herewith

as Annexure-I, it is evident that the applicant was on work during the year 2004, but he worked only for

8 days in the month of July, 2004 and thereafter he did not turn up. Similarly in February, 2005, he

worked for 5 days only and then did not turn-up on work. During the years 2006 and 2007, the

applicant never visited the office of the Range Officer, Kangoo Range at Kangoo…….”

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3127

10. The respondent to establish his claim that the petitioner had abandoned the job on his own ought to have

adduced in evidence the muster roll for the month of October, 2003 wherein the latter may have been shown to have

absented from work. But the respondent having failed so to do, it is difficult to accept his claim that the petitioner had

abandoned the job. In view of the mandays chart aforementioned and the respondent.s averments that the petitioner was

engaged as daily waged Beldar in January, 2000 and completed more than 240 days till October, 2003, I have not

hesitation in holding that the services of the petitioner were terminated by the respondent in October, 2003.

11. Section 25-F of the Act, which is alleged to have been violated by the respondent, may be reproduced

with advantage:

“25F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has

been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a)

the workman has been given one month.s notice in writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the

notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to

fifteen days. average [pay for every completed year of continuous service] or any part thereof in excess of six months;

and

specified by the appropriate Government by notification in the Official Gazette].

12. In view of these provisions, no workman employed in any industry, who has been in continuous service

for not less than one year, can be retrenched by the employer unless he has been given one month.s notice in writing

indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of

such notice, wages for the period of notice. The expression “continuous service” has been defined under Section 25-B

of the Act, which in its material part reads:

“25 (B). Definition of continuous service.- For the purposes of this Chapter,-

(1) a workman shall be in continuous service for a period if he is, for that period, in uninterrupted service,

including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which

is not illegal, or a lock-out or a cessation or work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year

or six months, he shall be deemed to be in continuous service under an employer.-

(a)

for a period of one year, if the workman, during a period of twelve calendar months preceding the date

with reference to which calculation is to be made, has actually worked under the employer for not less than-

(i)

one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii)

two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months preceding the date

with reference to which calculation is to be made, has actually worked under the employer for not less than.-

(i)

ninety-five days, in the case of workman employed below ground in a mine; and

(ii) one hundred and twenty days, in any other case….”

13. The mandays chart Ex. RW1/B as also the respondent.s pleadings are demonstrative of the petitioner

having worked for more than 240 days during the period of 12 calendar months preceding the date of his removal from

service. There is nothing to suggest that the respondent had at the time of termination of the services of the petitioner

given him one month.s notice or paid him wages in lieu of such notice, along with retrenchment compensation as

envisaged under Section 25-F of the Act. The petitioner.s removal from service thus being violative of the said

provisions was not proper and justified.

14. In dispensing with the services of the petitioner, the respondent also appears to have violated the

provisions of Section 25-G of the Act, which provides:

3128

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

“25-G. Procedure for retrenchment. – Where any workman in an industrial establishment, who is a

citizen of India, is to be retrenched and he belongs to a particular category of workmen in that

establishment, in the absence of any agreement between the employer and the workman in this behalf,

the employer shall ordinarily retrench the workman who was the last person to be employed in that

category, unless for reasons to be recorded the employer retrenches any other workman”.

15. The daily waged workers whose names figure at serial nos. 83, 84, 85, 86, 87, 89, 90,91, 92, 93, 95, 96,

98, 99, 101, 102 and 104 in the seniority list Ex. RW1/D adduced in evidence by the respondent, are indubitably junior

to the petitioner. This document is indicative of these workmen having been retained in service at the time the services

of the petitioner were dispensed with in October, 2003. In terminating the services of the petitioner, the respondent can

therefore safely be held to have violated the abovementioned provisions of Section 25-G of the Act as well. The

petitioner is therefore entitled to reinstatement in the same capacity as in which he was working at the time his services

were unlawfully terminated by the respondent. Besides, he is entitled to continuity of service from the date of his

retrenchment (October, 2003). In view of the facts and circumstances of the case, he is held entitled to 50% back-wages

as well. Both the issues under discussion are accordingly held in his favour and against the respondent.

Issue 2

16. In view of what has been held under the above issues 1 and 5, the petition is perfectly maintainable to

the extent the same relates to the reliefs the petitioner is found entitled to. The issue on hand is held accordingly in

favour of the petitioner and against the respondent.

Issue 3

17.

In view of what has been held under the above issues 1 and 5, the petitioner has decidedly locus standi

to raise the industrial dispute encompassed in the reference in question. The issue on hand is therefore held in his

favour and against the respondent.

Issue 4

18. In view of my findings on the above issues 1 and 5, the respondent.s claim that the petitioner has no

cause of action, does not hold water and is therefore rejected. The issue under discussion is therefore held in favour of

the petitioner and against the respondent.

RELIEF

19. Judged in the light of my findings on the issues above, particularly issues 1 and 5, the petition succeeds

partly and is allowed in part. Accordingly, the petitioner is held entitled to reinstatement with 50% back-wages and

continuity of service from the date of his unlawful retrenchment (October, 2003). The said 50% back-wages shall be

computed on the basis of the last drawn wage or the minimum wages permissible under the Minimum Wages Act

whichever is higher till the date of reinstatement of the petitioner. The respondent is directed to re-engage the petitioner

within a period of 90 days from today. The reference is answered accordingly. A copy of this award be sent to the

appropriate Govt. for publication in the official gazette and the file after completion consigned to records.

Announced in the open Court today this 28th day of February, 2009.

By order,

S.S.SEN,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

____________

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P.

Ref. No. : 367/2002

Date of Institution : 25.11.2002

Date of decision : 17.1.2009

Ms. Anita Devi D/o Sh. Jagdish Chand, Village, Dak Bagra, P.O. Chountra, Tehsil, Joginder Nagar, Distt.

Mandi, H.P.

…Petitioner

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3129

Versus

The Executive Engineer, H.P.S.E.B. Division Joginder Nagar, Distt. Mandi, H.P.

…....Respondent

For the Petitioner :

Sh. Virender Sharma, Adv.

For the Respondent :

Sh. B.K. Sood, Adv.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether the termination of the services of Ms. Anita Devi (Daily Waged Meter Reader/ Bill

Distributor) D/o Sh. Jagdish Chand w.e.f. 25.7.1986 by the Executive Engineer, H.P.S.E.B Division

Joginder Nagar, Distt. Mandi without any notice, Charge Sheet and enquiry is proper and justified?

If not, what relief of service benefits the above workman is entitled to?”

On notice, the petitioner filed her statement of claim wherein she averred that she was engaged by the

respondent as daily waged Meter Reader/Bill Distributor on muster roll basis on August 25, 1980, and that she worked

as such under the Assistant Engineer, Electrical Sub Division Chountra upto July 24, 1986. Claiming to have worked

for 1744 days during the period she remained in the employ of the respondent, the petitioner alleged that the respondent

struck out her name from the muster roll w.e.f. July 25, 1998, vide his letter No.JED/A-10/86-87-8305 dated

21.10.1986. Claiming to have completed more than 240 days during the period of 12 calendar months preceding the

date of termination of her services, the petitioner further alleged that in dispensing with her services, the respondent had

violated the provisions of Section 25-F of the Industrial Disputes Act, 1947 (the Act, for short), for she was not served

with any notice nor was she paid retrenchment compensation at the time her services were dispensed with. Besides, the

respondent, according to her, violated the principle of „last come first go. as envisaged under Section 25-G of the Act,

because certain workmen namely Kiran Sharma, Virender Kumar, Sapna Dhawan and Kuldeep Chand, who were

junior to her, were retained in service at the time of termination of her services. These workmen, it is further averred,

were later regularised as clerk. In dispensing with the services of the petitioner, the respondent also violated the

provisions of Clause 14(2) of the Industrial Establishment Standing Orders (hereinafter referred to as the Standing

Orders) framed under the Industrial Employment (Standing Orders) Act, 1946. Besides, he committed breach of the

provisions of Section 25-H of the Act, according to the petitioner. On the basis of these averments the petitioner prayed

for a direction to the respondent to reinstate her with full back-wages and continuity of service. She also prayed for a

direction to the respondent to fix her seniority as Clerk/Meter Reader/Bill Distributor in the regular pay scale.

The respondent in his reply admitted the petitioner.s claim of having been engaged as Bill Distributor on

daily wages basis on August 25, 1980, but refuted her allegation that her services were terminated on July 25, 1986.

Denying having terminated the services of the petitioner, the respondent averred that she had worked upto August 18,

1986 and abandoned the job on her own on August 19, 1986 without giving any prior intimation to her superiors. As

the petitioner did not turn up after August 18, 1986, the Assistant Executive Engineer, Electrical Sub Division, HPSEB,

Chountra, informed the Executive Engineer, Electrical Division, Joginder Nagar of her absence and sought guidance in

the matter, vide letter No.957-58 dated August 30, 1986. In response to the letter, the said Executive Engineer

intimated that the name of the petitioner had been struck out from the Seniority Register in the Divisional office on

account of her absence from duty from August 19, 1986 onwards. After abandoning the job on August 19, 1986, the

petitioner, according to the respondent, never approached him for her re-engagement during the period of more than 15

years of her continuous absence from duty. In view of her having abandoned the job on her own, no provision of the

Act or the Standing Orders, according to the respondent, can be said to have been violated. The respondent.s other

contentions relate to limitation, estoppel, misjoinder of the parties and non-joinder of necessary parties.

The petitioner in her rejoinder controverted the contentions of the respondent and reiterated her stand

taken in the claim petition. According to her, she was forced to leave the job by the official of the Sub Division, and

that she had approached the respondent “through many correspondences and the respondent did not pay any heed

towards the letter of the workman.”

On the pleadings of the parties, my Ld. Predecessor-in-office framed the following issues for

determination:

Whether the termination of services of the petitioner Anita Devi w.e.f.25.7.86 by the respondent is legal

and justified?

OPP

3130

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

If Issue No.1 is not proved, what relief of service benefits the petitioner is entitled to?

OPP

Whether the petition is not maintainable as alleged?

OPR

Whether the present petition is barred by time as alleged?

OPR

Whether the petitioner is estopped to file and maintain the present petition in view of the preliminary

objections?

OPR

Whether the petition is bad for misjoinder and nonjoinder of necessary parties, as alleged?

OPR

Relief.

By his award dated March 3, 2006, my Ld. Predecessor-in-office dismissed the petitioner.s claim, inter

alia observing:

“…..Bearing in mind the above discussions hinged upon the verdict of the Hon.ble High Court of H.P.

holding that the belated preferment of claim imbues it with staleness, so, as to render the reference

comprising the dispute to be, also, stale, thereby rendering the reference as not maintainable and while

keeping in mind the delay and latches as have taken place, since, the retrenchment of the workmen

which in took place in the year 1986, the reference as has been made of the dispute by the competent

authority in the year 2001 is manifestly and palpably belated, especially, when of no explanation on

proof of delay thereof exists, hence stale, therefore, on account of staleness of the claim, the claim, as,

preferred before this Tribunal, in my view is not maintainable being barred by delay and latches. Since

the staleness of claim has been held to be not keeping the dispute alive, therefore, the conclusion is that

the workman has acquiesced in it or a dispute as it then was and which ought to have been expeditiously

canvassed by the workman on account of delay can be said to have been effaced or faded, so, also, the

concomitant effect is that inference of abandonment can also be made….”

Aggrieved, the petitioner preferred before the Hon.ble High Court of Himachal Pradesh a Writ Petition

(CWP No.474/2007). By its order dated November 27, 2008, the Hon.ble High Court set aside the impugned award and

remanded the matter to this Court for decision afresh, inter alia observing:

“…..The Labour Court has rejected the claim petition only on the ground of delay and laches. The

question of delay and laches was never referred to the Labour Court. In the present case neither the

petitioner nor the employer has placed on record any material to show when the conciliation

proceedings commenced and failed. The raising of demand notice, conciliation proceedings and failure

report etc. consumes considerable time. The date of raising the dispute is not the date of the reference

by the State Government. The dispute is raised when the workman protests against the action taken by

the Management. In the present case, the workman has been retrenched on 25.7.1986. She has made

representation Ex. P4 in the year 1986. She made representations to the Executive Engineer in the year

1989 (Ex. P-3) and August, 1989 (Ex. P-2). The representations made by the workman were not heeded

to. The workman has issued the demand notice 9th June, 2001 (Ex. P-5). Thereafter considerable period

has been consumed during the conciliation proceedings. Consequently, it cannot be held that there is

delay of 16 years in the present case.

The Labour Court could not refuse to exercise the jurisdiction vested in it on the ground of delay and laches

when the reference has already been made by the State Government in its own wisdom.

The Labour Court instead of dismissing the claim on the ground of delay could take this fact into

consideration at the time of moulding of the relief. Accordingly, the award dated 23.3.2006 passed by the Presiding

Judge, Labour Court, Dharamshala is quashed and set aside….”

For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

The petitioner having been proved to have abandoned the job on her own, hers was not a

case of termination of her services.

Issue 2 :

She is not entitled to any relief.

Issue 3 :

Yes

Issue 4 :

The petition suffers from the vice of delay and laches.

Issue 5 :

Yes

Issue 6 :

Issue 7 :

The petition dismissed per operative part of the award.

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3131

REASONS FOR FINDINGS

Issue 1

The petitioner.s claim of having worked as daily wager Meter Reader/Bill Distributor under the

Assistant Engineer, Electrical Sub Division, Chountra upto July 24, 1986 and her allegation that her services were

suddenly terminated by the respondent on July 25, 1986, do not appear to be having a ring of truth in view of the

materials on record. The mandays chart Ex. RW1/A the correctness of which is not disputed by her, is indicative of her

having worked for 24 days during the period from July 25, 1986 to August 24, 1986. Had her services been terminated

by the respondent on July 25, 1986 as alleged by her, she would have not been shown to have worked beyond July 24,

1986 in the mandays chart. Her claim that her services were terminated by the respondent on July 25, 1986, is therefore

nothing but falsity. More so, when she in her cross-examination as PW1 maintained:

“…..My date of suspension of service mentioned in the petition as 25.7.85 is wrong and incorrect; self

stated that it is a clerical mistake….”

10. But nowhere in her pleadings did the petitioner allege that her services were terminated by the

respondent on August 25, 1986. She in her statement of claim mentioned two dates of the alleged termination of her

services; one, 25.07.1985 in paragraph 2, and the other, 25.07.1986 in the relief portion.

11. Refuting the petitioner.s allegation of termination of her services, the respondent, on the other hand,

averred that the petitioner, who was engaged as Bill Distributor on daily wages basis on August 25, 1980, had worked

upto August 18, 1986, and that she abandoned the job on her own on August 19, 1986 without giving prior intimation

to her superiors, appears to be true in view of the evidence led by the respondent. The respondent.s witness B.R. Rana,

then Assistant Executive Engineer, Electrical Division, HPSEB, Joginder Nagar, testified as RW1 that petitioner Anita

was not removed from service but she herself absented from work. Ex. RW1/C is a copy of the letter dated August 30,

1986 addressed to the Executive Engineer, Electrical Division, Joginder Nagar, by the Assistant Engineer, Electrical

Division, HPSEB, Chountra. The letter, which was about the petitioner.s absence from duty without intimation, in its

material part reads:

“It is intimate that Smt. Anita Devi W/o Sh. Jagjit Singh working under this Sub-Division as M/Roll

basis as Bill Distributor Helper is absent from duty w.e.f. 18.8.1986 to date. She has neither submitted

any application for leave in this office nor she has verbally taken permission from any body regarding

her absence from duty. There is a continuous absence of 11 days w.e.f. 18.8.86 to date and it is not

known as to when she will turn up for duty.

It may, therefore, kindly be advised whether Smt. Anita Devi W/o Sh. Jagjit Singh daily wages B.D. helper is

to be re- engaged as her joining please.”

12. In response to this letter, the Executive Engineer aforementioned sent to the Assistant Executive

Engineer a letter dated October 21, 1986, a copy whereof which is Ex. PW1/D. The relevant portion of this letter reads:

“In this connection it is intimated that the name of Smt. Anita Devi W/o Sh. Jagjit Singh working under

your Sub-Division on M/Roll basis as B/D helper has been struck off from the seniority Register of

Divisional Office, because of her absence from duty from 18.8.86 onwards.”

13. There being no reason to discredit the correctness of this letter and the one dated August 30, 1986, Ex.

RW1/C, the respondent.s claim that the petitioner had abandoned the job after August 18, 1986, rings true. More so, in

view of the petitioner.s failure to approach the respondent or raise the industrial dispute for years together after August

18, 1986, and the falsity of her following averments in paragraph 2-B of the rejoinder:

“………the applicant/workman did not leave the job at her own but she has been forced to leave the job

by the Deptt. and it is also denied that the applicant/workman did not approach the respondent for the

re-engagement. The applicant/workman approached the respondent through many correspondence and

the respondents did not pay any heed towards the letter of the applicant/workman…..”

14. The petitioner sought to substantiate these averments by adducing in evidence photocopies of three

letters (Ex. P2, Ex. P3 and Ex. P4) she claimed to have written to the Executive Engineer, HPSEB, Joginder Nagar and

the SDO, HPSEB, Chountra. Of these letters, while the one Ex. P4 addressed to the SDO, HPSEB, Chountra bears only

the year „1986. in the place of date and is non-existent in the date and month when the same was written, the other Ex.

P2 addressed to the Executive Engineer, HPSEB, Joginder Nagar shows the same to have been written in „August

1999. and is non-existent in the date. The third letter Ex. P3 addressed to the Executive Engineer, HPSEB, Joginder

Nagar bears the date 24 Mar 1985.. What prevented the petitioner from writing the exact date in the letters Ex. P2 and

3132

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

Ex. P4, is inexplicable. It deserves mention that she did not choose to get the originals of these letters requisitioned

from the respondent nor did she choose to put them to the respondent.s aforesaid witness B.R. Rana during his cross-

examination as RW1. To me, the said letters do not appear to be genuine, else the petitioner would have written the

exact date thereon, made a mention thereof in her pleadings, got the originals thereof requisitioned from the respondent

or atleast put them to the respondent.s aforesaid witness B.R. Rana during his cross-examination as RW1. In view of

the falsity of the petitioner.s claim of having entered into correspondence with the respondent for her re-engagement in

service, I am disposed to hold that she did not approach the respondent for years together after August 18, 1986. This

conduct of hers and the raising of the instant industrial dispute by her more than a decade after July 24, 1986 lead me to

hold that her allegation that her services were terminated by the respondent on 24.07.1986/25.07.1986/25.08.1986 (the

first two dates are in her statement of claim and the last one is in her affidavit Ex. P1) is nothing but falsity. More so, in

view of the evidence led by the respondent, which is demonstrative of her having abandoned the job on her own on

August 19, 1986. The issue under discussion is accordingly held against her and in favour of the respondent.

Issue 2

15. In view of what has been held under the foregoing issue the petitioner is not entitled to any relief. The

issue on hand is held accordingly.

Issue 3

16. In view of my findings on the above issue 1, the petition is not maintainable. The issue on hand is

therefore held in favour of the respondent and against the petitioner.

Issue 4

17. The petitioner is proved to have abandoned the job on her own on August 19, 1986. The instant

reference made to this Court vide HP Government (Labour Department) Notification No.11-23/84(ySc½ vkbZ

Mh@Hkkx/2002/Mandi dated November 23, 2002, appears to have been based on the report dated October 20, 2001 of

the Labour Inspector-cum-Conciliation Officer, Joginder Nagar. Even if a period of about 5 years is assumed to have

been consumed in conciliation proceedings, the petitioner must have approached the said Labour Inspector in or about

1995, that is, about ten years after July 24, 1986. In view of this position and what has been held under the above issue

1, the petition decidedly suffers from the vice of delay and laches. The issue under discussion is accordingly held

against the petitioner and in favour of the respondent.

Issue 5

18. The petitioner, who is held to have abandoned the job on her own, is estopped from raising the industrial

dispute. Her petition is therefore not maintainable. The issue on hand is held accordingly.

Issue 6

19. The instant is not a case of mis-joinder of the parties. Also no such party appears to have been left out as

in the absence of whom the matters in controversy cannot be effectively adjudicated upon. The respondent.s contention

that the petition is bad for mis-joinder of the parties and non-joinder of necessary parties, is therefore not tenable. The

issue under discussion is accordingly held against the respondent and in favour of the petitioner.

RELIEF

20. Judged in the light of my findings on the issues above, particularly issues 1 and 2, the petition fails and

is hereby dismissed.

There shall be no order as to costs. The reference is answered accordingly. A copy of this award be sent to the

appropriate Govt. for publication in the official gazette and the file after completion consigned to records.

Announced in the open Court today this 17th day of January, 2009.

By order,

S.S.SEN,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3133

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P.

Ref No. : 3/2008

Date of Institution : 17.1.2008

Date of decision : 26.11.2008

Shri Bahadur Singh S/o Shri Rania Ram, R/o Village Jaskot, P.O. Jhanyari, Tehsil & District Hamirpur, H.P.

….Petitioner

Versus

Project Officer, Herbal Garden, Joginder Nagar, District Mandi, H.P.

The Incharge, Herbal Garden, Neri, P.O. Khagal, Tehsil & District Hamirpur, H.P.

…....Respondents

For the Petitioner :

Sh. N.L. Kaundal, AR

For the Respondent :

Sh. H.S. Dhiman, Dy.D.A.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether the action of the (1) Project Officer, Herbal Garden, Joginder Nagar, District Mandi, H.P. (2)

The Incharge, Herbal Garden, Neri, P.O. Khagal, Tehsil & District Hamirpur, H.P. to retain junior

workers who are junior to Shri Bahadur Singh S/o Shri Rania Ram workman and to give him break in

service as alleged by the workman without complying the provisions of the Industrial Disputes Act, 1947

is proper and justified? If not, what relief of back wages, seniority and service benefits the above

aggrieved workman is entitled from the above employer?”

On notice, the petitioner filed his statement of claim wherein he averred that he was engaged as daily

waged beldar by the respondent 1 on January 4, 1999 and posted to Herbal Garden, Neri in Hamirpur district. Claiming

to have been working at the said place ever since his engagement as daily waged beldar, the petitioner alleged that the

respondents 1 and 2 had been giving fictional breaks in his service so that he could not be able to complete 240 days in

any of the calendar years. His co-workmen namely Pawan Kumar, Jasbir Singh, Ravinder Kumar, Desh Raj, Chaman

Lal, Vijay Kumar, Ramesh Chand and Milap Chand, who were also working at Herbal Garden, Neri as daily waged

beldar, were also given fictional breaks except one Satish Kumar, who was also engaged as daily wager by the

respondent 1 and working in the said garden. In the case of Satish Kumar, no fictional break, according to the

petitioner, was ever given and the respondents. act of giving fictional breaks in the petitioner.s service and that of his

aforementioned co-workers is violative of the provisions of Sections 25-G and 25-H of the Industrial Disputes Act,

1947 (the Act, for short). Some other workmen namely Sohan Singh, Lohali Devi, Ram Singh, Smt. Saina Devi, Punni

Devi, Sher Singh, Prem Singh, Kuldeep Chand, Nirmal Kumar, Judiya Devi, Nirmla Devi, Kamla Devi, Baldev Raj,

Munni Devi, Sukh Ram, Raj Mal, Ramesh Kumar, Mahesh Kumar, Hirda Ram, Mattu Ram, Shiv Ram and Smt. Kala

Devi, who according to the petitioner were also engaged on daily wages basis in another herbal garden of Ayurveda

department namely Herbal Garden, Joginder Nagar in Mandi district, were also being given fictional breaks in their

service. In their case, the Incharge, Herbal Garden, Joginder Nagar, was, however, forbidden from giving fictional

breaks by the Director of Ayurveda, vide his letter dated July 18, 1999. Claiming the fictional breaks in his case to be

the intentional act of the respondents, the petitioner further averred that he having never absented from work wilfully

was entitled to continuity of service in view of the provisions of Section 25-B of the Act. Besides, he is entitled to

wages for the period of fictional breaks. He therefore prays for a direction to the respondents to count the period of

fictional breaks towards continuity of his service and pay him wages for the said period along with interest @ 9% per

annum. He also prays for a direction to the respondents to regularise his service on the basis of his seniority.

The respondents in their joint reply admitted the petitioner.s claim of having been engaged as daily

waged beldar at Herbal Garden, Neri on January 4, 1999, but refuted his allegation of fictional breaks. Claiming the

work of Herbal Garden, Neri to be a seasonal work, the respondents averred that the petitioner and other workers

namely Chaman Lal, Vijay Kumar, Ramesh Chand, Baljit Singh, Pawan Kumar, Jasbir Singh, Desh Raj, Ravinder

Kumar, Chander Kant, Ravinder Kumar and Madan Lal were engaged on daily wages basis at the said garden subject

to availability of work and budget, and no fictional break was ever given in their service. As for Satish Kumar, he was

in fact engaged as daily waged worker at Herbal Garden, Joginder Nagar on 1.7.1996 and he being deft in nursery

development work was temporarily shifted to Herbal Garden, Neri on 12.4.1999 to carry out the said work and other

related works there. About four years later he was called back to Herbal Garden, Joginder Nagar after the other workers

3134

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

of Herbal Garden, Neri gained knowledge of nursery development work upto the desired level. On the basis of these

averments the respondents pray for dismissal of the claim petition.

The petitioner in his rejoinder controverted the contentions of the respondents and reiterated his stand

taken in the claim petition.

On the pleadings of the parties, the following issues were framed for determination:

Whether the respondents have been giving fictional breaks in the service of the petitioner.

OPP

Whether Satish Kumar is junior to the petitioner, as alleged.

OPP

If the above issues 1 and 2 are proved, what relief of service benefits the petitioner is entitled to?

OPR

Relief.

For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

Yes partly, as the respondents have been giving breaks in the service of the petitioner.

Issue 2 :

Issue 3 :

The petitioner is entitled to the relief as mentioned in the operative part of the award.

Relief :

The claim petition allowed partly per operative part of the award.

REASONS FOR FINDINGS

Issue 1

The petitioner.s claim of having been engaged as daily waged Beldar at Herbal Garden, Neri on January

4, 1999, is not disputed by the respondents. Also, his claim that he was still working as beldar on daily wages basis at

the said garden, is not denied by the respondents. What is denied by the respondents is his allegation of fictional breaks.

But this denial of theirs appears to be far from truth in view of the materials on record. The Mandays Chart of casual

labourers working in Herbal Garden, Neri is demonstrative of the petitioner having worked for 209 days in 1999, 219.5

days in 2000, 209.5 days in 2001, 219 days in 2002, 212.5 days in 2003, 213 days in 2004, 252 days in 2005, 326 days

in 2006, 296 days in 2007 and 117 days during the period from January 1, 2008 to April, 2008. That there have been

breaks in his service is manifest from this document. In substantiation of his allegation that the breaks in service were

notional/fictional, the petitioner swore an affidavit Ex. PW1/A wherein he alleged that the respondents had been giving

notional/fictional breaks in his service during the period; January, 1999 to April, 2005. Besides, he relied upon a copy

of the letter dated July 18, 1999 addressed to the Incharge, Herbal Garden, Joginder Nagar by the Director of

Ayurveda, Himachal Pradesh, Annexure P1. This letter in its material part reads:

“You are hereby advised not to give any break after 89 days in future to daily paid Labourers who are

engaged to work in Herbal Garden as such a notional break has been disapproved by the competent

courts also.”

The petitioner.s allegation is that some other workmen namely Sohan Singh, Lohali Devi, Ram Singh, Smt.

Saina Devi, Punni Devi, Sher Singh, Prem Singh, Kuldeep Chand, Nirmal Kumar, Judiya Devi, Nirmla Devi, Kamla

Devi, Baldev Raj, Munni Devi, Sukh Ram, Raj Mal, Ramesh Kumar, Mahesh Kumar, Hirda Ram, Mattu Ram, Shiv

Ram and Smt. Kala Devi, who were engaged on daily wages basis in Herbal Garden, Joginder Nagar, were also being

given fictional breaks in their service, and that the Incharge of the said Garden was forbidden from so doing by the

Director of Ayurveda, vide his aforementioned letter dated July 18, 1999, Annexure P1. As to this allegation, the

respondents. averments in paragraph 7 of their joint reply are:

“That the contents of para-7 are admitted to the extent that these workers Sh. Sohan Singh, Lohli Devi,

Ram Singh, Saina Devi, Puni Devi, Sher Singh, Prem Singh, Kuldeep Chand, Nirmal Kumar, Judhia

Devi, Nirmala Devi, Baldev Raj, Munni Devi, Sukh Ram, Raj Mal, Ramesh Kumar, Mahesh Kumar,

Hirda Ram, Mattu Ram, Shiv Ram & Kala Devi were engaged in Herbal Garden, Joginder Nagar and

their notional breaks were discontinued by the order of Director Ayurveda, H.P. being senior. The

office order issued by the Director Ayurveda to discontinue the breaks is not applicable to the casual

labourers working in Herbal Garden Neri because they are being engaged subject to the availablity of

work & budget, as the work of Herbal Garden Neri is a seasonal work.” (emphasis supplied)

By these averments, what stands admitted by the respondents is that abovenamed workers, who were

engaged on daily wages basis in Herbal Garden, Joginder Nagar, were being given fictional/notional breaks in their

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3135

service, which practice was discontinued on receipt of an office order issued by the Director Ayurveda. Why the said

Director.s office order to discontinue the breaks in service could not be made applicable to the casual labourers

working in Herbal Garden, Neri, is averred to be their having been engaged subject to the availability of work and

budget, as the work of Herbal Garden, Neri, according to the respondents, is a seasonal work. Going by this claim of

the respondents, the petitioner.s service, or for that matter the service of the workmen engaged in Herbal Garden, Neri

used to be terminated from time to time on account of cessation of work and non-availability of budget. They used to

be re-engaged on the availability of work and budget. Although there is no plausible material on record to lend

assurance to the respondents. claim that the work of Herbal Garden, Neri is only seasonal, and that the petitioner and

his aforementioned co-workers were engaged there as casual workers subject to the availability of work and budget,

even if this claim is assumed to be true, the petitioner is entitled to the relief of continuity of service in view of the

provisions of Section 25-B of the Act, which in its material part says:

“25B. Definition of continuous service. For the purposes of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted

service, including service which may be interrupted on account of sickness or authorised leave or an

accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault

on the part of the workman…………..”

It is manifest from these provisions that a workman is deemed to be in continuous service for a period if

he is, for that period, in uninterrupted service, including the service, which may be interrupted on account of sickness

or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due

to any fault on the part of the workman. If to go by the respondents. stand, the breaks in the petitioner.s service were

caused on account of cessation of work and non-availability of funds. But the cessation of work and the non-

availability of funds not been attributable to any fault on the part of the petitioner, he is to be considered in continuous

service ever since his engagement as beldar on daily wages basis (January 4, 1999). The issue under discussion is

accordingly held in favour of the petitioner and against the respondents.

Issue 2

10. The petitioner.s claim that Satish Kumar having been engaged by the respondents as daily waged beldar

in Herbal Garden, Neri on 12.4.1999 was junior to him, to my thinking, does not appear to be having a ring of truth in

view of materials on record. The respondents. averments as also the evidence led by them are indicative of Satish

Kumar having been engaged as daily waged beldar in Herbal Garden, Joginder Nagar on July 1, 1996 and his having

been temporarily shifted to Herbal Garden, Neri on 12.4.1999 to carry out the nursery development work there.

According to the respondents, the reason why Satish Kumar was temporarily shifted to Herbal Garden, Neri, was his

being deft in nursery development work and the casual workers engaged in Herbal Garden, Neri not being in the know

of that work. About four years later, Satish Kumar was called back to Herbal Garden, Joginder Nagar after the other

workers of Herbal Garden, Neri gained knowledge of nursery work upto the desired level. There being no reason to

discredit this claim of the respondents, the petitioner.s claim that Satish Kumar is junior to him cannot to be accepted

and is therefore rejected. The issue on hand is accordingly held against the petitioner and in favour of the respondents.

Issue 3

11. In view of the facts and circumstances of the case and my findings on the foregoing issues, the petitioner

is entitled to only the relief of continuity of service from the date of his engagement as daily waged beldar (4.1.1999).

The issue on hand is held accordingly.

RELIEF

12.

Judged in the light of my findings on the issues above, the petition succeeds partly and is allowed in

part. The petitioner is held entitled to continuity of service from the date of his engagement as daily waged beldar

(4.1.1999). He is, however, held not entitled to wages for the periods of break in his service. Also, his claim that certain

workers junior to him were retained is rejected. The reference is answered accordingly. A copy of this award be sent to

the appropriate Govt. for publication in the official gazette and the file after completion consigned to records.

Announced in the open Court today this 26th day of November, 2008.

By order,

S.S.SEN,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

3136

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P.

Ref No. : 91/2005

Date of Institution : 18.6.2005

Date of decision : 20.12.2008

Shri Baldev Dass S/o Shri Sant Ram, Village Dakhyat, P.O. Dangar, Tehsil Ghumarwin, Distt. Bilaspur, H.P.

….Petitioner

Versus

The Executive Engineer, H.P.P.W.D., Division, Ghumarwin, Distt. Bilaspur, H.P.

….Respondent

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. S.S. Sippy, AR.

For the Respondent :

Sh. H.S. Dhiman, Ld. Dy.D.A.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether the termination of services of Shri Baldev Dass S/o Shri Sant Ram workman by the

Executive Engineer, H.P.P.W.D. Division, Ghumarwin, Distt. Bilaspur, H.P. w.e.f. 28.2.98 without

complying the provisions of the Industrial Disputes Act, 1947 and whereas junior to him are retained

by the department is proper and justified? If not, what relief of service benefits and compensation the

above aggrieved workman is entitled to?”

On notice, the petitioner filed his statement of claim wherein he averred that he was engaged by the

respondent as daily waged Beldar on June 1, 1997, and that he worked as such upto February 28, 1998 when his

services were terminated by therespondent orally. Claiming to have worked for more than 240 days during each

completed year of service, the petitioner further averred that in dispensing with his services, the respondent violated the

provisions of Section 25- F of the Industrial Disputes Act, 1947 (the Act, for short), because no notice was served upon

him nor was he paid any retrenchment compensation. Besides, the respondent violated the principle of „first come last

go. as envisaged under Section 25-G of the Act. The respondent, it is further alleged, also violated the provisions of

Section 25-H of the Act, because the persons namely Raghunath, Jitender Singh, Chain Singh, Om Prakash, Rakesh

Kumar, Ramesh Chand, Thakur Dass, Bali Ram, Data Ram, Surender Kumar, Bhagwan Dass, Subhash Chand, Vidhi

Chand, Anand Kumar, Sarju Ram and Jaisee Ram, who were engaged after the termination of services of the petitioner

and no opportunity to offer himself for employment was given to him by the respondent before engaging them.

According to the petitioner, the respondent also violated the provisions of Section 25-N of the Act, because no prior

approval of the State Government was sought for termination of his services. The petitioner prayed for a direction to

the respondent to reinstate him with full back-wages and continuity of service.

Admitting the petitioner.s claim of having been engaged as daily waged Beldar on June 1, 1997, the

respondent averred that he having been engaged only for a period of 100 days under the Employment Assurance

Scheme was not covered by the principle of „first come last go.. Disputing the petitioner.s claim of having worked for

more than 240 days during each completed year of service, the respondent further averred that he had worked for 179

days in 1997 and 55 days in 1998, and that in view his working days, the provisions of Section 25-F of the Act could

not therefore be said to have been violated. The petitioner.s allegation that certain workmen junior to him were retained

in service at the time his services were dispensed with, was also repudiated by the respondent. However, his allegation

that the persons namely Raghunath, Jitender Singh, Chain Singh, Om Prakash, Rakesh Kumar, Ramesh Chand, Thakur

Dass, Bali Ram, Data Ram, Surender Kumar, Bhagwan Dass, Subhash Chand, Vidhi Chand, Anand Kumar, Sarju Ram

and Jaisee Ram were engaged after the termination of his services, was admitted to be correct by the respondent. It is

further averred that these persons were engaged on the basis of the orders of the H.P. Administrative Tribunal. On the

basis of these averments, the respondent prayed for dismissal of the claim petition.

On the pleadings of the parties, the following issues were framed for determination by my Ld.

Predecessor-in-office:

Whether the services of the petitioner were terminated by the respondent w.e.f. 28.2.98 without

complying with the provisions of the Industrial Disputes Act, is an improper and unjustified manner?

OPP

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3137

If issue 1 is not proved in the affirmative, what service benefits the petitioner is entitled to?

OPP

Whether the petitioner was engaged by the respondent under the Employment Assurance Scheme for

which the funds were provided by the Central Govt. to the respondent. If so, its effect?

OPR

4. Relief.

5. For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

Yes

Issue 2 :

He is entitled to reinstatement, 25% back-wages and continuity of service from the date of

termination of his services.

Issue 3 :

Issue 4 :

The petition allowed partly per operative part of the award.

REASONS FOR FINDINGS

Issue 1 And 3

These issues being inter-linked are taken up together.

The respondent in his reply averred that the petitioner was engaged as daily waged Beldar only for 100

days under the Employment Assurance Scheme. But this claim, to my mind, does not ring true in view of the mandays

chart (Annexure R1), which is demonstrative of the petitioner having worked for 179 days in 1997 and 55 days in 1998.

Had the respondent.s claim of having engaged the petitioner only for 100 days under the scheme aforementioned been

true, the latter would have not been allowed to work after the expiration of the period of time for which he was

allegedly engaged. I am therefore not disposed to accept the respondent.s claim that the petitioner was engaged only for

100 days under the Employment Assurance Scheme.

Section 25-F of the Act, which is alleged to have been violated by the respondent, reads:

“25-F. Conditions precedent to retrenchment of workman.- No workman employed in any industry who

has been in continuous service for not less than one year under an employer shall be retrenched by that

employer until-

(a)

the workman has been given one month.s notice in writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the

period of the notice:

(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to

fifteen days. average pay for every completed year of continuous service or any part thereof in excess of

six months; and

(c)

notice in the prescribed manner is served on the appropriate Government or such authority as may be

specified by the appropriate Government by notification in the Official Gazette.”

In view of these provisions, no workman employed in any industry, who has been in continuous service

for not less than one year, can be retrenched by the employer unless he has been given one month.s notice in writing

indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of

such notice, wages for the period of notice. The expression “continuous service” has been defined under Section 25-B

of the Act, which in its material part reads:

“25B. Definition of continuous service. For the purposes of this Chapter,-

(2) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted

service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike

which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(3) where a workman is not in continuous service within the meaning of clause (1) for a period of one year

or six months, he shall be deemed to be in continuous service under an employer-

(a)

for a period of one year, if the workman, during a period of twelve calendar months preceding the date

with reference to which calculation is to be made, has actually worked under the employer for not less than-

3138

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

(i)

one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case….”

10. However, the petitioner.s claim of having been in continuous service for not less than one year or say his

claim of having completed 240 days “in each service year”, does not appear to be having a ring of truth in view of the

evidence led by the respondent. The mandays chart (Annexure R1) the correctness of which is not disputed by the

petitioner, is demonstrative of his having not worked for 240 days during the period of 12 calendar months preceding

the date of his retrenchment. The respondent was therefore not obliged to serve with him one month.s notice and pay

him retrenchment compensation as envisaged under Section 25-F of the Act. The petitioner.s contention that in

retrenching him the respondent had violated the provisions of Section 25-F of the Act cannot therefore be accepted.

11. However, the petitioner.s allegation that in retrenching him, the respondent had violated the provisions

of Section 25-G of the Act, to my thinking, appears to be tenable. Section 25-G of the Act provides:

“25-G. Procedure for retrenchment. – Where any workman in an industrial establishment, who is a citizen

of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the

absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily

retrench the workman who was the last person to be employed in that category, unless for reasons to be

recorded the employer retrenches any other workman”.

12. The respondent.s witness Lekh Ram Mehla, then Executive Engineer, HPPWD Division Ghumarwin, in

paragraph 5 of his affidavit Ex. RW1/A deposed:

“That the other labourers who are junior to the petitioner are working in the department, as per order

of Administrative Tribunal Shimla, H.P.”

13. This deposition is indicative of certain workmen junior to the petitioner having been retained in service.

No such orders of the H.P. Administrative Tribunal have been brought on record as may lend assurance to the

respondent.s claim that the workmen junior to the petitioner were working in the department on the basis thereof. As

the respondent on his own showing established on record that certain workmen junior to the petitioner were retained in

service at the time the latter.s services were dispensed with, he (respondent) can safely be held to have violated the

provisions of Section 25-G of the Act. But the respondent also appears to have violated the provisions of Section 25-H

of the Act, which says:

“25 (H). Re-employment of retrenched workman. – Where any workmen are retrenched, and the employer

proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an

opportunity [to the retrenched workmen who are citizens of India to offer themselves for reemployment, and

such retrenched workmen] who offer themselves for reemployment shall have preference over other persons”.

14. In paragraph 2 of his statement of claim, the petitioner averred:

“That the employer, after my termination, following new worker appointed who are still in service,

Raghunath, Jitender Singh, Chain Singh, Om Prakash, Rakesh Kumar, Ramesh Chand, Thakur Dass,

Bali Ram, Data Ram, Surender Kumar, Bhagwan Dass, Subhash Chand, Vidhi Chand, Anand Kumar,

Sarju Ram and Jaisee Ram.”

15. Admitting these averments to be correct, the respondent in his reply averred:

“That the labourer as: Raghu Nath, Jitender Singh, Chain Singh, Om Prakash, Rakesh Kumar,

Ramesh Chand, Thakur Dass, Bali Ram, Data Ram, Surinder Kumar, Bhagwan Dass, Vidhi

Chand, Anand Kumar, Sarju Ram and Jaisee Ram are still working in the deptt. But it is

pertinent to note here that all these labourer are working as per the order of the Hon.ble

Administrative Tribunal at Shimla, H.P.”

16. In substantiation of these averments, the respondent, however, did not choose to bring on record such

orders of the H.P. Administrative Tribunal as may show that the abovementioned workmen were engaged on the basis

thereof. Since the persons mentioned in the afore-reproduced paragraph 2 of the petitioner.s statement of claim were

admittedly engaged after the termination of his services and there is nothing indicative of the respondent having given

the petitioner an opportunity to offer himself for re-employment before taking the said persons into his employ, he

decidedly violated the provisions of Section 25-H of the Act. As a result, both the issues under discussion are held in

favour of the petitioner and against the respondent.

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3139

Issue 2

17. In view of what has been held under the foregoing issues, the petitioner is entitled to reinstatement in the

same capacity as in which he was working at the time his services were terminated. Besides, he is entitled to continuity

of service from the date of his retrenchment (February 28, 1998). In view of the facts and circumstances of the case, he

is held entitled to 25% back-wages from the date of termination of his services. The issue on hand is held accordingly.

RELIEF

18. Judged in the light of my findings on the issues above, the petition succeeds partly and is allowed in

part. Accordingly, the petitioner is held entitled to reinstatement in the same capacity as in which he was working at the

time his services were terminated. (February 28, 1998). Besides, he is held entitled to 25% back-wages and continuity

of service from the said date. The said 25% back-wages shall be computed on the basis of the last drawn wage or the

minimum wages permissible under the Minimum Wages Act whichever is higher till the date of reinstatement of the

petitioner. The respondent is directed to re-engage the petitioner within a period of 90 days from today. The reference

is answered accordingly. A copy of this award be sent to the appropriate Govt. for publication in the official gazette.

The file after completion be consigned to the record room.

Announced in the open Court today this 20th day of December, 2008.

By order,

S.S. SEN

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

____________

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P.

Ref No. : 632/2008

Date of Institution : 29.10.2008

Date of decision : 31.3.2009

Shri Bansi Lal S/o Shri Mahajan R/o Village Kapahi P.O. Sari, Tehsil Sarkaghat, Distt. Mandi, H.P.

….Petitioner

Versus

The Executive Engineer, HPPWD, Division Dharampur, Tehsil Sarkaghat, Distt. Mandi, H.P.

….Respondent

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. N.L. Kaundal, AR

For the Respondent :

Sh. H.S. Dhiman, Ld. Dy.D.A.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether retrenchment of services of Shri Bansi Lal S/o Shri Mahajan, by the Executive Engineer,

HPPWD Division Dharampur, Tehsil Sarkaghat, Distt. Mandi, w.e.f. 08.7.2005 without following the

provisions of Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages,

seniority, past service benefits and compensation the above Ex-Worker is entitled to from the above

employer?”

On notice, the petitioner filed his statement of claim wherein he averred that he was engaged by the

respondent as daily waged Beldar on muster roll basis in 1998, and that he worked as such in Dharampur Division of

HPPWD upto July 8, 2005. On July 8, 2005, his services were terminated by the respondent by giving him a

retrenchment notice under Section 25N of the Industrial Disputes Act, 1947 (the Act, for short). Claiming to have

worked for more than 240 days in each calendar year from 1998 to July 8, 2005 and completed as many days during the

period of 12 calendar months preceding the date of his retrenchment, the petitioner further averred that retrenchment

compensation having been paid to him before the date of his retrenchment and not at the time his services were

dispensed with, the termination of his services was not lawful. More so, when the authority specified by the

3140

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

Government (Chief Engineer, HPPWD (B&R) Central Zone, Mandi) from whom prior permission for retrenchment of

the petitioner is stated to have been obtained under Section 25N (1) (b) of the Act, could not in law be notified as

specified authority. Another count on which the termination of services of the petitioner, according to him, is unlawful

relates to the notice of retrenchment being bad in the eye of law. It is averred that the provisions of Section 25N of the

Act under which the notice of retrenchment was issued, apply to a workman employed in an „industrial establishment.

as defined under Section 25L of the Act. The Public Works Department in which was employed the petitioner, not

being an „industrial establishment. within the meaning of Section 25L of the Act, the termination of his services by

way of three months. notice under Section 25N of the Act is unlawful. In the case of Public Works Department, the

notice of termination of services of a workman, according to the petitioner, is envisaged under Section 25F of the Act.

But the respondent having not given the petitioner such a notice and paid him retrenchment compensation as envisaged

under Section 25F of the Act, his retrenchment is unlawful on this count as well. Yet another count on which the

petitioner.s retrenchment is unlawful, is stated to be the violation by the respondent of the principle of „Last Come First

Go. as envisaged under Section 25G of the Act. The workmen namely Subhash Chand, Shashi Kant, Bidhi Chand,

Ranjeet Singh, Balak Ram, Dalip Singh, Dharampal and others, according to the petitioner, were junior to him and

unlawfully retained in service at the time his services were dispensed with. In terminating the services of the petitioner,

the respondent thus violated the provisions of Section 25G of the Act as well. The petitioner therefore prayed for

setting aside the retrenchment orders dated July 8, 2005. He also prayed for a direction to the respondent to reinstate

him with full back-wages, continuity of service and other consequential benefits. Another direction sought to be issued

to the respondent is for regularization of the services of the petitioner in accordance with the policy of the State

Government in this behalf.

The respondent in his reply admitted the petitioner.s claim of having been engaged as daily waged

Beldar on muster roll basis in 1998 and retrenched on July 8, 2005, but denied having violated the provisions of the Act

in terminating his services by a notice under Section 25N of the Act. Explaining the reason why the petitioner was

retrenched, the respondent averred that on creation of Dharampur Division out of Sarkaghat Division of HPPWD with

effect from September 7, 1998, a large number of labourers was indiscriminately engaged during the period from

November, 1998 to June, 1999. The total strength of labour swelled upto 4045, which was being maintained out of

Non-Plan funds. The funds utilized for defrayment of labour wages caused financial hardship, which adversely affected

the maintenance of roads in Mandi district. So, it was under these circumstances that the respondent retrenched the

services of the petitioner and other surplus workers after obtaining permission of the Chief Engineer, HPPWD (B&R)

Central Zone, Mandi, who was notified as the specified authority by the State Government under Section 25N of the

Act. It is averred that the petitioner having been given a three months. notice and paid retrenchment compensation as

envisaged under Section 25N of the Act, the termination of his services is not violative of any provision of the Act. As

to the petitioner.s allegation of violation of the provisions of Section 25G of the Act, the respondent.s contention is that

due to non-availability of senior workers in the newly created Dharampur Division some workers were transferred to

that Division from other Divisions/Sub Divisions. However, when on scrutiny of the „case/seniority. the true position

came to notice, retrenchment notices were issued to the „above juniors., who were also „surplus to the requirement..

Claiming the petitioner.s retrenchment to be in accordance with the provisions of the Act, the respondent further

averred that the reference was not maintainable and the petitioner not entitled to the relief prayed for by him. It is also

averred that the petition suffers from the vice of delay and laches; that the petitioner is estopped from filing the claim

petition by his act and conduct, and that he is guilty of suppressio veri.

On the pleadings of the parties, the following issues were framed for determination:

Whether the termination of services of the petitioner by the respondent is unlawful. If so, what relief the

petitioner is entitled to?

OPP

Whether the petition is not maintainable, as alleged.

OPR

Whether the petition suffers from the vice of delay and laches.

OPR

Whether the petitioner is guilty of suppressio veri.

OPR

Whether the petitioner is estopped from filing the claim petition by his act and conduct.

OPR

Relief.

For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

Yes. He is entitled to reinstatement, 50% back-wages and continuity of service from the

date of termination of his services.

Issue 2 :

No.

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3141

Issue 3 :

Issue 4 :

Issue 5 :

Relief. :

The petition allowed partly per operative part of the award.

REASONS FOR FINDINGS

Issue 1

There is no gainsaying the fact that the petitioner was engaged by the respondent as daily waged Beldar

on muster roll basis in 1998 and worked as such in Dharampur Division of HPPWD upto July 7, 2005. Also, there is no

denying the fact that the petitioner was retrenched by the respondent w.e.f. July 8, 2005 under Section 25N of the Act.

What is denied by the respondent is the petitioner.s allegation of his having been retrenched unlawfully. But this denial,

to my thinking, does not appear to be tenable in view of the materials on record and the facts and circumstances of the

case. Section 25N under which the petitioner has been retrenched, appears in Chapter VB of the Act which relates to

special provisions relating to lay-off, retrenchment and closure in certain establishments. This section refers to a

workman employed in any industrial establishment to which applies Chapter VB of the Act. The applicability of this

Chapter is governed by Section 25K which provides that the Chapter shall apply to an industrial establishment (not

being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than

one hundred workmen were employed on an average per working day for the preceding twelve months. The expression

“industrial establishment” is for the purposes of Chapter VB defined by clause (a) of Section 25L, which reads:

“25L (a) “industrial establishment” means-

(i)

a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);

(ii) a mine as defined in clause (j) of sub-section (1) of section 2 of the Mines Act, 1952 (35 of 1952);

(iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951);”

The petitioner's Authorised Representative contends with vehemence that Dharampur Division of Public

Works Department not being an “industrial establishment” within the meaning of clause (a) of Section 25L, the

termination of services of the petitioner by a three months. notice as contemplated under Section 25N of the Act is not

lawful.

Per contra, the Ld. Dy. District Attorney appearing for the respondent argues that Dharampur Division

of Public Works Department falls within the definition of “industrial establishment” and the petitioner.s retrenchment

made in accordance with the provisions of Section 25N of the Act cannot therefore be said to be unlawful. But this

contention, to my mind, does not appear to be holding water. The expression “factory” occurring in clause (a) of

Section 25L is defined in Clause 2(m) of the Factories Act, 1948 thus:

“(m) “factory” means any premises including the precincts thereof-

(i)

whereon ten or more workers are working, or were working on any day of the preceding

twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is

ordinarily so carried on, or

(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve

months, and in any part of which a manufacturing process is being carried on without the aid of power,

or is ordinarily so carried on,- but does not include a mine subject to the operation of the Mines Act,

1952 (35 of 1952), or a mobile unit belonging to the armed forces of the Union, railway running shed or

a hotel, restaurant or eating place.”

The respondent.s pleadings are non-existent in such averments as may show the Public Works

Department to be a “factory” as defined above. Also, there is nothing to suggest that in Dharampur Division of

HPPWD wherein was engaged the petitioner, some manufacturing process is/was being carried on with the aid of

power, or is ordinarily so carried on. Also, there is nothing to show that in any part of the said Division some

manufacturing process is/was being carried on without the aid of power, or is ordinarily so carried on. It is therefore

difficult to accept the Ld. Dy. D.A..s contention that Dharampur Division of HPPWD is an “industrial establishment”

within the meaning of Section 25L (a) of the Act and the petitioner.s retrenchment under Section 25N of the Act does

not suffer from any illegality. Since Dharampur Division of HPPWD is not proved to be an “industrial establishment”

within the meaning of Section 25L(a) of the Act, the petitioner.s Authorised Representative.s aforementioned

contention deserves acceptance and is accepted.

3142

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

10. The petitioner.s Authorised Representative further contends that another count on which his client.s

retrenchment under Section 25N of the Act cannot be said to be lawful relates to the illegality committed by the State

Government in notifying the Chief Engineer, HPPWD (B&R), Central Zone, Mandi as the specified authority from

whom prior permission for retrenchment of the petitioner and other workers is stated to have been obtained under

Section 25N (1) (b) of the Act. The said Chief Engineer, according to the Authorised Representative, being the head of

HPPWD (B&R) Central Zone, Mandi wherein is comprised the HPPWD Division, Dharampur, could not in law be

notified as the specified authority for the purpose of Section 25N (1) (b) of the Act. This contention also, to my

thinking, appears to be having force. Section 25N of the Act in its material part reads:

“25N. Conditions precedent to retrenchment of workmen.

(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in

continuous service for not less than one year under an employer shall be retrenched by that employer until,-

(a)

the workman has been given three months. notice in writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the

period of the notice; and

(b) the prior permission of the appropriate Government or such authority as may be specified by that

Government by notification in the Official Gazette (hereafter in this section referred to as the specified

authority) has been obtained on an application made in this behalf”

(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed

manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served

simultaneously on the workmen concerned in the prescribed manner.

(3) Where an application for permission under sub-section (1) has been made, the appropriate Government

or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being

heard to the employer, the workmen concerned and the person interested in such retrenchment, may, having regard to

the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant

factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such

order shall be communicated to the employer and the workmen.……………………………………………………….

(4) Where no application for permission under sub-section (1) is made, or where the permission for any

retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of

retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time

being in force as if no notice had been given to him.”

11. In the document Ex. RW1/B, Chief Engineer, HPPWD (B&R) Central Zone, Mandi is shown to have

been notified by the State Government as specified authority for the purposes of Sections 25F, 25M and 25N of the Act

in relation to HPPWD (B&R) Central Zone, Mandi. For terminating the services of the petitioner, the Executive

Engineer, B&R Division HPPWD, Dharampur, is stated to have obtained prior permission from the said specified

authority under Section 25N (1) (b) of the Act. The question that in view of the facts and circumstances of the case

arises is: Whether or not the Chief Engineer, HPPWD (B&R), Central Zone, Mandi could in law be notified as the

specified authority by the State Government. The answer, to my mind, is in the negative. The expression “employer”

occurring in Section 25N is defined in Clause (g) of Section 2 of the Act thus:

“(g) “employer” means-

(i)

in relation to any industry carried on by or under the authority of any department of the Central

Government or a State Government, the authority prescribed in this behalf, or where no authority is

prescribed, the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of

that authority;”

12. The materials on record are not indicative of the respondent (Executive Engineer, B&R Division,

HPPWD, Dharampur) who dispensed with the services of the petitioner w.e.f. July 8, 2005 (vide his orders dated July

2, 2005 Ex. RW1/D a copy whereof was sent to the specified authority Cum-Chief Engineer (CZ) HPPWD Mandi for

favour of information) having been notified as the authority prescribed, or say the “employer” in relation to the industry

carried on by the Public Works Department in its Dharampur Division. The employer, or say the authority prescribed in

relation to the said Division of HPPWD was therefore the head of the department in view of the abovementioned

provisions of Clause (g) of Section 2 of the Act. The aforementioned Chief Engineer, who was notified by the State

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3143

Government as the specified authority for the purposes of Sections 25F, 25M and 25N of the Act, being undeniably the

head of HPPWD (B&R), Central Zone, Mandi, was the employer of the petitioner. But the employer and the specified

authority cannot in law be one and the same person. In notifying the Chief Engineer as the specified authority, the State

Government therefore committed an illegality. More so, when for the sake of fair play and justice the head of the

department/zone in which was employed the retrenched workman, ought not to have been notified as the specified

authority. Since the Chief Engineer, HPPWD (B&R) Central Zone, Mandi could not in law be notified as the specified

authority, the permission granted by him for the retrenchment of the petitioner is decidedly no permission in the eye of

law. The petitioner.s retrenchment can therefore safely be held to be illegal in view of the abovementioned provisions

of sub-section (7) of Section 25N of the Act.

13. The respondent to retrench the petitioner on account of his being surplus ought to have taken recourse to

the relevant provisions contained in Chapter VA of the Act, which deals with lay-off and retrenchment. One of the

sections enumerated in this chapter is 25F which lays down conditions precedent to retrenchment of workmen. It says:

“25-F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who

has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-

(a)

the workman has been given one month.s notice in writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the

period of the notice:

(b) the workman has been paid, at the time of retrenchment compensation which shall be equivalent to

fifteen days. average pay for every completed year of continuous service or any part thereof in excess of

six months; and

(c)

notice in the prescribed manner is served on the appropriate Government or such authority as may be

specified by the appropriate Government by notification in the Official Gazette.”

14. In view of these provisions, no workman employed in any industry, who has been in continuous service

for not less than one year, can be retrenched by the employer unless he has been given one month.s notice in writing

indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of

such notice, wages for the period of notice. The expression “continuous service” has been defined under Section 25B of

the Act, which in its material part reads:

“25B. Definition of continuous service. For the purposes of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period, in uninterrupted

service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike

which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year

or six months, he shall be deemed to be in continuous service under an employer-

(b) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with

reference to which calculation is to be made, has actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below ground in a mine; and

(ii) two hundred and forty days, in any other case….”

15. The petitioner.s claim of having worked for more than 240 days in each calendar year from 1998 to July

8, 2005 and completed as many days during the period of 12 calendar months preceding the date of his retrenchment, is

not disputed by the respondent. Before dispensing with the services of the petitioner the respondent was therefore

obliged to serve him with one month.s notice and pay him retrenchment compensation as envisaged in the

abovementioned provisions of Section 25F of the Act. But the respondent having failed so to do decidedly violated the

said provisions in terminating the services of the petitioner.

16. But even if Dharampur Division of HPPWD wherein was employed the petitioner, or for that matter the

entire H.P. Public Works Department is assumed to be a “factory” within the meaning of Section 2(m) of the Factories

Act, 1948, or say, an “industrial establishment” as defined under Section 25L of the Act and no fault is found with the

State Government.s action of notifying the aforesaid Chief Engineer as the specified authority, the petitioner.s

retrenchment is still unlawful on account of the violation by the respondent of the principle of “Last Come First Go” as

envisaged under Section 25G of the Act. Section 25G of the Act provides:

“25-G. Procedure for retrenchment.—Where any workman in an industrial establishment, who is a citizen

of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of

3144

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the

workman who was the last person to be employed in that category, unless for reasons to be recorded the employer

retrenches any other workman”.

17. The petitioner in paragraph 4 of his statement of claim alleged that the workmen namely Subhash

Chand, Shashi Kant, Bidhi Chand, Ranjeet Singh, Balak Ram, Dalip Singh, Dharampal and others, who were junior to

him, were unlawfully retained in service by the respondent at the time his services were dispensed with and the

respondent thus violated the principle of “Last Come First Go” as contemplated under Section 25G of the Act. In reply,

the respondent in paragraph 4 averred:

“That the contents of this para partly admitted, and it is submitted that some junior daily wages workers are

working in Dharampur Division due to non availability of seniority of workers were transferred from other

Division/Sub-Division. The case/seniority has scrutinized again when above facts came to the notice. However, the

retrenchment notice to above juniors have also been served who are surplus to the requirement.”

18. This reply of the respondent lends assurance only to the petitioner.s allegation that certain workmen,

who were junior to him, were retained in service at the time his services were dispensed with by the respondent.

19. Further, the petitioner in his affidavit specifically alleged that the workman namely Shashi Kant S/o

Bihari Lal, who was engaged on January 1, 2000, was junior to him and retained in service at the time his (petitioner)

services were terminated. The respondent.s witness Naresh Kumar Sharma, Executive Engineer, HPPWD Division,

Dharampur, in his cross-examination as RW1, however, denied the petitioner.s suggestion that certain workmen junior

to him (petitioner) were retained in service at the time of termination of his services, but admitted to having prepared

the seniority list/year-wise mandays chart in respect of the workman namely Shashi Kant S/o Bihari Lal. Ex. PW1/B,

according this said witness, is a true copy of the seniority list/year-wise mandays chart issued by him. This document is

demonstrative of Shahsi Kant having been engaged as daily waged Beldar in Dharampur Division of HPPWD in the

month of January, 2000 and his being in the employ of the respondent till November, 2008. In another seniority list Ex.

RW1/C adduced in evidence by the respondent, Shashi Lal S/o Bihari Lal, who figures at serial No.646, is shown to

have been engaged on 6.4.1999. So he is indubitably junior to the petitioner. The said seniority list is also indicative of

the said workman having been retained in service at the time the petitioner was retrenched. The respondent thus on his

own showing lent credence to the petitioner.s allegation that the workman Shashi Kant (Shashi Lal) who was junior to

him, was retained in service at the time his services were dispensed with. In retrenching the petitioner, the respondent is

thus proved to have violated the provisions of Section 25G of the Act.

20. The petitioner's Authorised Representative contends that the respondent had violated the provisions of

Section 25H of the Act as well, because Mamta Devi w/o Hans Raj, who was engaged by the respondent as daily

waged Beldar in 2000 and retrenched along with the petitioner, was later re-engaged in 2007 without giving the

petitioner an opportunity to offer himself for re-employment.

21. Per contra, the Ld. Dy. D.A. argues that Mamta Devi having been engaged on compassionate grounds

after the demise of her husband, who was also working in HPPWD, the respondent cannot be said to have violated the

provisions of Section 25H of the Act. This contention, to my thinking, appears to be holding water in view of the

seniority list Ex. RW1/C which is indicative of Mamta Devi having been re-engaged on compassionate grounds. In

view of her having been re-engaged on compassionate grounds, the petitioner.s pleadings being non-existent in his

allegation of Mamta Devi having been re-engaged after his retrenchment and this allegation of his not being the subject

matter of the reference on hand, it is difficult to hold that the respondent had violated the provisions of Section 25H of

the Act.

22. Since in retrenching the petitioner, the respondent is proved to have violated the provisions of Sections

25F and 25G of the Act, the petitioner is entitled to reinstatement in the same capacity as in which he was working at

the time his services were dispensed with. Besides, he is entitled to continuity of service from the date of his

retrenchment (July 8, 2005). His claim of being entitled to regularization with the policy of the State Government is,

however, not being adjudicated upon, for the same is not the subject matter of the reference.

23. The petitioner in paragraph 15 of his statement of claim averred that he was not gainfully employed

anywhere after the termination of his services, and that he was still unemployed. In substantiation of this claim he in his

affidavit inter alia deposed that after his illegal retrenchment he was not gainfully employed anywhere and was still

unemployed. There being no rebuttal to this deposition of his, his claim deserves acceptance and is accepted. In view of

the facts and circumstances of the case, the petitioner, to my mind, is entitled to 50% back-wages from the date of his

unlawful retrenchment. The issue under discussion is accordingly held in his favour and against the respondent.

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3145

ISSUE 2

24. In view of what has been held under the foregoing issue, the petition is perfectly maintainable to the

extent the same relates to the reliefs the petitioner is found entitled to. The issue on hand is accordingly held in favour

of the petitioner and against the respondent.

ISSUE 3

25. The Ld. Dy.D.A. contends that there being inordinate delay in the steps taken by the petitioner for the

redressal of his grievance, his claim suffers from the vice of delay and laches, which disentitles him to the reliefs he

prayed for. This contention, to my thinking, appears to be ill conceived. The question of delay and laches was

considered by the Hon.ble High Court of Himachal Pradesh in Divisional Manager, Himachal Pradesh Forest

Corporation, Division Sundernagar, District Mandi, H.P. vs. Dilu Ram (CWP No. 95/2000 decided on 26.8.2004)

wherein it was inter alia held:

“It is well settled that 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 mere hypertechnical defence though reference to the Labour

Court can be generally questioned on the ground of delay alone. The provisions of Article 137 of the

Schedule to the Limitation Act, 1963 are not applicable to the proceedings under the Act and that the

relief under it cannot be denied to the workman merely on the ground of delay (See Ajaib Singh v.

Sirhind Co-Op. Marketing-cum-Processing Service Society Ltd. 1999(82)FLR 137 (SC).

26. Upon an industrial dispute having been raised by the petitioner, the Conciliation Officer-cum-Labour

Officer, Mandi appears to have initiated conciliation proceedings. On failure of the conciliation move, the said Officer

referred the matter to the Labour Commissioner, Himachal Pradesh, vide his report No.9898 dated 30.11.2007. On the

basis of this report, the Labour Commissioner referred the dispute to this Court under Section 10(1) of the Act, vide

Notification No.11-23/84(Lab) 1.D/08-Mandi dated September 29, 2008. In view of the period of time that elapsed

before the matter came to be referred to this Court, the petitioner who felt aggrieved by his unlawful retrenchment on

July 8, 2005, cannot be said to have delayed the steps he took for the redressal of his grievance. His claim therefore

does not suffer from the vice of delay and laches. So, the Ld. Dy.D.A..s aforementioned contention merits rejection and

is rejected. The issue under discussion is accordingly held against the respondent and in favour of the petitioner.

ISSUE 4

27. The respondent.s allegation that the petitioner is guilty of suppressio veri, does not appear to be having a

ring of truth, because the materials on record are not indicative of his having suppressed such fact(s) as may have vital

bearing on the case. The Issue on hand is therefore held against the respondent and in favour of the petitioner.

ISSUE 5

28. The rule of estoppel is not attracted in this case. The Ld. Dy. D.A. appearing for the respondent has also

not been able to show how the petitioner is estopped from filing the claim petition. The issue under discussion is

therefore held against the respondent and in favour of the petitioner.

RELIEF

29. Judged in the light of my findings on the issues above, particularly issue 1, the petition succeeds partly

and is allowed in part. Accordingly, the petitioner is held entitled to reinstatement with 50% back-wages and continuity

of service from the date of his unlawful retrenchment (July 8, 2005). The said 50% back-wages shall be computed on

the basis of the last drawn wage or the minimum wages permissible under the Minimum Wages Act whichever is

higher till the date of reinstatement of the petitioner. The respondent is directed to re-engage the petitioner within a

period of 90 days from today. The reference is answered accordingly. A copy of this award be sent to the appropriate

Govt. for publication in the official gazette and the file after completion consigned to records.

Announced in the open Court today this 31st day of March, 2009.

By order,

S. S. SEN,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

3146

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P. (CAMP AT BILASPUR)

Ref No. : 157/2006

Date of Institution : 2.11.2006

Date of decision : 21.1.2009

Smt. Bimla Devi W/o late Shri Darshan Ram Village Halel, P.O. Kanaid, Tehsil Sunder Nagar, District

Mandi, H.P.

. .Petitioner.

Versus

The Deputy Director of Industries (Sericulture) Palampur, District Kangra, H.P.

The Technical Officer (Tassar) Sericulture Division, Mandi, H.P.

. .Respondents.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. L.B. Sharma, Adv.

For the Respondent :

Sh. H.S. Dhiman, Ld. Dy.D.A.

AWARD

The following reference was received for adjudication from the appropriate Government:

“Whether the action of the (1) Deputy Director of Industries (Sericulture) Palampur, District Kangra, H.P. (2)

The Technical Officer (Tassar) Sericulture Division, Mandi, H.P. to give break in service to Smt. Bimla Devi

W/o Late Sh. Darshan Ram, workman during her service period time and again and finally terminated w.e.f.

09.06.2004 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?”

On notice, the petitioner filed her statement of claim wherein she averred that she was engaged by the

respondents as daily waged Beldar in 1994, and that she worked as such upto July 20, 2004. Thereafter the respondents

suddenly terminated her services orally without giving her an opportunity of being heard. Claiming to have worked for

240 days in each calendar year, the petitioner alleged that the respondents, who had been giving fictional breaks in her

service, never allowed her to complete 240 days in any calendar year, and that she having not been served with any

notice before termination of her services, the respondent had violated the provisions of Section 25-F of the Act, 1947

(the Act, for short). The respondents, according to the petitioner, also violated the provisions of Section 25-G of the

Act, because certain workmen, who were junior to her, were retained in service at the time of her retrenchment. The

respondent, it is further alleged, also violated the provisions of Section 25-H of the Act. The petitioner therefore prayed

for a direction to the respondents to re-engage her in the same capacity as in which she was working at the time of

termination of her services. She also prayed for a direction to the respondents to pay her full back-wages and count the

“intervening period between re-engagement and dis-engagement” towards her seniority.

The respondents in their joint reply admitted the petitioner.s claim of having been engaged as daily

waged Beldar in 1994, but refuted her allegation of fictional breaks in her service. The petitioner.s allegation that her

services were terminated on July 20, 2004, was also repudiated by the respondents. Claiming the petitioner to have

been engaged as against a seasonal work, which was purely of temporary nature, the respondents averred that she had

worked only for 9 days in 1994 and thereafter never completed 240 days in any year, and that she did not turn up after

July, 2004. Refuting the petitioner.s allegation that certain workers junior to her were retained and working in the

department, the respondents averred that “no junior persons to the applicant has ever been engaged or allowed to be

continued by the respondents, as alleged rather all those who are working in the unit are seniors to the applicant.” On

the basis of these averments, the respondents prayed for dismissal of the claim petition.

The petitioner in her rejoinder controverted the contentions of the respondents and reiterated her stand

taken in the claim petition. Claiming to have worked for 9 days in 1994, she alleged that the Mandays Chart prepared

by the respondents was wrong, and the certain workers junior to her were still working in the respondents. department.

On the pleadings of the parties, the following issues were framed for determination:

Whether the respondent had been giving fictional breaks in the petitioner.s service. If so, to what effect?

. .OPP

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3147

Whether the termination of services of the petitioner by the respondents is unlawful. If so, what relief of

service benefits and the amount of compensation she is entitled to?

. .OPP

Whether the claim petition is not maintainable?

. .OPR

Relief.

For the reasons to be recorded hereinafter, my findings on these issues are as under:

Issue 1 :

Issue 2 :

Yes. She is entitled to the relief as mentioned under this issue.

Issue 3 :

Relief :

The claim petition allowed partly per operative part of the award.

REASONS FOR FINDINGS

ISSUE 1

The respondents. claim in their joint reply that the petitioner was engaged as against a seasonal work,

which was purely of a temporary nature, to my thinking, does not appear to be having a ring of truth in view of the

materials on record. Nowhere in his affidavit Ex. RW1/A or cross-examination as RW1 did the respondents. witness

Piar Singh, Technical Officer (Tassar) Sericulture Department, Mandi, maintain that the petitioner was engaged as

against a seasonal work. Also, the Mandays Chart (Annexure R-1) produced by the respondents is not indicative of the

petitioner having been engaged as against a seasonal work. The respondents. claim that the petitioner was engaged as

against a seasonal work cannot therefore be taken without a pinch of salt.

But the petitioner.s allegation that the respondents had been giving fictional breaks in her service, also,

to my mind, does not ring true for want of plausible evidence. She in her affidavit Ex. PW1/A inter alia deposed:

“Moreover the respondent No.3 willfully and intentionally did not allow the applicant to complete 240 days initially

upto 1997 after that applicant has completed 240 days, but the mandays chart has been prepared arbitrarily as no month

wise mandays chart has been given as applicant has worked for whole of the year so the termination order is void,

abinitio…..”

This deposition, to my mind, appears to be far from truth, for the mandays chart is indicative of her

having worked for 9, 8, 159, 155, 190, 168, 181, 168, 161 and 65 days during the years 1994, 1996, 1997, 1998, 1999,

2000, 2001, 2002, 2003 and 2004 respectively.

The petitioner.s allegation that the mandays chart has been prepared arbitrarily, and that the respondent

3 (respondent 2 in the reference) had not allowed her to complete 240 days in any calendar year, cannot be accepted,

because no such suggestion was put to the latter during his cross-examination RW1 as may show that he had prepared

the mandays chart arbitrarily and not allowed the petitioner to complete 240 days in any calendar year. The allegation

of fictional breaks cannot therefore be said to have been substantiated. The issue under discussion is accordingly held

in the negative.

ISSUE 2

10. The petitioner in her affidavit Ex. PW1/A deposed that she had worked upto July 20, 2004 when all of a

sudden her services were orally terminated by the respondents. This deposition of hers having not specifically been

challenged during her cross-examination by the respondents deserves acceptance and is accepted. The respondents.

claim in their joint reply that the petitioner had abandoned the job after July, 2004, is therefore nothing but falsity.

More so, when they did not choose to lead such documentary evidence as may show her to have absented from work or

abandoned the job after July 20, 2004.

11. The petitioner.s allegation that in terminating her services, the respondents had violated the provisions of

Section 25-F of the Act, to my mind, does not appear to be tenable, because the materials on record are not

demonstrative of her having worked for 240 days during the period of 12 calendar months preceding the date of her

retrenchment.

12. However, in terminating the services of the petitioner, the respondents appear to have violated the

provisions of Section 25-G of the Act, which reads:

“25-G. Procedure for retrenchment. – Where any workman in an industrial establishment, who is a citizen

of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the

absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily

3148

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

retrench the workman who was the last person to be employed in that category, unless for reasons to be

recorded the employer retrenches any other workman”.

13. The petitioner in her affidavit Ex. PW1/A deposed that the workmen namely Goverdhan Singh, Bimla

Devi, Uttam Chand, Mahant Ram, Nilima, Hans Raj and Rattan, who were junior to her, were still working at Pandoh,

Nagwain, Mumail, Mohin and Mandi. This claim of the petitioner having not specifically been disputed during her

cross-examination by the respondents appears to be true. More so, when the seniority list Ex. RA adduced in evidence

by the respondents is also indicative of the said workmen being junior to the petitioner and their having been retained in

service at the time of termination of her services. The respondents are therefore proved to have violated the

abovementioned provisions of Section 25-G of the Act. In view of the respondents having been found to have violated

the provisions of Section 25-G of the Act, the petitioner is entitled to reinstatement in the same capacity as in which she

was working at the time of termination of her services. Besides, she is entitled to continuity of service from the date of

her unlawful retrenchment (July 20, 2004). However, she is held not entitled to back-wages, because her pleadings as

also the evidence led by her are non-existent in such averments as may show that she was not gainfully employed after

her retrenchment. The issue under discussion is held accordingly.

ISSUE 3

14. In view of what has been held under the foregoing issues, the petition is perfectly maintainable to the

extent the same relates to the reliefs the petitioner is found entitled to. The issue on hand is held accordingly.

RELIEF

15. Judged in the light of my findings on the issues above, particularly issues 2, the petition succeeds partly

and is allowed in part. Accordingly, the petitioner is held entitled to reinstatement in the same capacity as in which she

was working at the time of termination of her services (July 20, 2004). Besides, she is held entitled to continuity of

service from the date of her retrenchment. She is, however, held not entitled to any back-wages. The respondents are

directed to re-engage the petitioner within a period of 90 days from today. The reference is answered accordingly. A

copy of this award be sent to the appropriate Govt. for publication in the official gazette and the file after completion

consigned to the record room.

Announced in the open Court today this 21st day of January, 2009.

By order,

S.S. SEN,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

_______

IN THE COURT OF SHRI S.S. SEN PRESIDING JUDGE, LABOUR COURT-CUM-INDUSTRIAL TRIBUNAL

DHARAMSHALA, H.P.

Ref No. : 574/2008

Date of Institution : 29.10.2008

Date of decision : 31.3.2009

Shri Biri Datt S/o Shri Dido, Village Jajari, PO Baradla, Tehsil Sarkaghat, Distt. Mandi, H.P.

. .Petitioner

Versus

The Executive Engineer, HPPWD, Division Dharampur, Tehsil Sarkaghat, Distt. Mandi, H.P.

. .Respondent

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. N.L. Kaundal, AR

For the Respondent :

Sh. H.S. Dhiman, Ld. Dy.D.A.

AWARD

jkti=] fgekpy izns'k] 11 vxLr] 2010@20 Jko.k] 1932

3149

The following reference was received for adjudication from the appropriate Government:

“Whether retrenchment of services of Shri Biri Datt S/o Shri Dido by the Executive Engineer,