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fgekpy izns'k ljdkj

DEPARTMENT OF LABOUR AND EMPLOYMENT

NOTIFICATION

Shimla-2, 29th October, 2010

No. Sharm (A) 7-1/2005 (Award).—In exercise of the powers vested in him under section 17(1) of the

Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the publication of awards announced

by the Presiding Officer, Labour Court Shimla of the following cases on the website of Labour & Employment

Department:—

Sr.

No.

Case No.

Title of the Case

Date of Award

5/2009

S/Shri Ashwani Kumar Vs Chief Conservator of Forest, H.P. & Ors.

02-08-2010

91/2006

Babu Ram Vs Divisional Manager, H.P. State Forest Corpn., Solan.

07-08-2010

104/2003

Ram Dutt Vs DFO, Solan.

05-08-2010

5/2007

Gulam, Sabir Vs MD, HRTC, Shimla-1.

04-08-2010

36/2006

Baldev Sharma & Ors. Vs The Area Manager, Bata wholesale Depot,

Parwanoo, Solan.

04-08-2010

79/2009

Shankar Dutt Vs M.D. M/S Bhartendu Printing Press, Shimla-1.

11-08-2010

185&jkti=@2010&6&12&2010

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17/2006

Amar Dev Vs President, Gujrat Ambuja Cement Ltd., Darlaghat, District

Solan & Ors.

10-08-2010

103/2005

Pintoo Yadav Vs Manager, M/S Surya Pharmaceuticals Ltd., Baddi, Solan.

11-08-2010

62/2005

Mathu Ram Vs XEN, HPPWD(B&R), Solan.

12-08-2010

10.

64/2005

Prem Raj Vs MD, Tourism Development Corporation Ltd, Shimla-1 & Ors.

31-08-2010

11.

136/2007

Ranjeet Singh Vs G.M. M/S Birla Textile Mills Ltd., Baddi, Solan.

12-08-2010

12.

40/2009

Smt. Sunita Sharma Vs M/S Himachal Fastmers Parwanoo, Solan.

31-08-2010

13.

63/2005

Smt. Tara Devi Vs Officer Incharge, Air Force School, Kasauli, Solan.

12-08-2010

14.

4/2008

Smt. Vishmbari Devi Vs The Project Director, Kandi Integrated water shed,

Tank Road, Solan.

07-08-2010

15.

5/2008

Dev Raj Vs The Project Director, Kandi Integrated water shed, Tank Road,

Solan.

07-08-2010

16.

6/2008

Ram Swaroop Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

17.

7/2008

Jeet Singh Vs The Project Director, Kandi Integrated water shed, Tank Road,

Solan.

07-08-2010

18.

8/2008

Smt. Nirmala Devi Vs The Project Director, Kandi Integrated water shed,

Tank Road, Solan.

07-08-2010

19.

9/2008

Sanjeev Kumar Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

20.

10/2008

Smt. Tripta Dev Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

21.

11/2008

Yudhbir Singh Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

22.

12/2008

Dalbir Singh Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

23.

13/2008

Avtar Singh Vs The Project Director, Kandi Integrated water shed, Tank

Road, Solan.

07-08-2010

By order,

Sd/-

ACS (Labour & Employment).

__________

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

SHIMLA CAMP AT SOLAN.

Ref no. 136 of 2007

Instituted on 1.11.2007.

Decided on. 12.8.2010.

Ranjeet Singh S/o Shri Geeta Ram R/o Village Jamrari, P.O Goyla Panner, Tehsil Nalagarh, District Solan,

HP.

Petitioner……..

Vs.

The General Manager M/s Birla Textile Mills Ltd., Village Bhatoli Kalan Khurd, Sai Road, Baddi, Tehsil

Nalagarh, District Solan, HP.

Respondent………..

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

For petitioner:

Shri J.C Bhardwaj, Ld. AR.

For respondent : Shri Jagdish Thakur, Advocate.

AWARD

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

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“Whether the action of M/s Birla Textile Mills ltd., Village Bhatoli Kalan Khurd, Sai Road, Baddi, Tehsil

Nalagarh, District Solan, HP to terminate the services of Shri Ranjeet singh S/o Shri Geeta Ram workman

w.e.f. 9.5.2005 and not to pay him salary for the month of April & may, 2005 without complying the

provisions of the Industrial disputes Act, 1947 as alleged by the workman is proper and justified? If not,

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

Briefly, the case of the petitioner is that he had joined as plumber-cum-fitter with the respondent on

1.4.2001 and continued to remain as such till 8.5.2005. On 9.5.2005, he was not allowed to resume his duties. His last

drawn wages were Rs. 2470 per month. It is alleged that with ulterior motive, the respondent management terminated

his services orally. Although, he continued to visit the gate of the respondent company since 9.5.2005 but all in vain. In

fact, the respondent had concocted a false story that he used to remain absent from duty but in this regard, neither any

letter was issued to him nor any enquiry got conducted. During the service tenure, he had completed 240 days in each

calendar year including twelve months preceding his termination. It has also been mentioned that he is unemployed.

Since, his services were terminated in contravention of the provisions of the Industrial disputes Act, 1947 (hereinafter

referred Act), he deserves to be reinstated, in service, with all the consequential benefits.

The petition has been contested on having raised various preliminary objections including that the

petitioner had abandoned the job. On merits, it has been asserted that the petitioner had continued to remain in the

employment of respondent till 16.5.2005 and thereafter, he absented himself and did not report back to duties. As a

matter of fact, he had remained on sanctioned leave w.e.f. 9.5.2005 to 16.5.2005. It is further pleaded that the petitioner

is running his own business at Baddi and that he had not collected the wages for the month of April & May, 2005

which are Rs. 1415/- and Rs. 167/- respectively. Other allegations denied.

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

respondent.

Pleadings of the parties gave rise to the following issues which were struck on 2.3.2009.

Whether the action of M/s Birla Textile Mills Ltd., Bhatoli Kalan Khurd to terminate the services of

the petitioner w.e.f. 9.5.2005 without the payment of his salary for the month of April & May, 2005

and without complying the provisions of the Industrial Disputes Act, 1947 is improper and

unjustified as alleged?

OPP………….

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

is entitled to?

OPP…………

Whether the petitioner has abandoned the job of his own w.e.f. 17.5.2005?

OPR………….

Relief.

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

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

the aforesaid issues are as under:

Issue no.1

Yes.

Issue no.2

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

Issue no.3

No.

Relief

Reference answered in favour of the petitioner as per operative part of award.

Reasons for findings.

Issue no. 1

Petitioner (PW-1) has supported all the material facts while appearing in the witness box including

that his services were terminated w.e.f. 9.5.2005 and that he never remained absent from duties. When, his services

were terminated, neither any notice was issued nor he was paid any compensation. He was also not supplied with any

charge sheet and no enquiry was got conducted against him. In each calendar year, he had completed 240 days. In the

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cross examination, he admitted of having proceeded on sanctioned leave from 9.5.2005 to 16.5.2005 but again stated

that the same was not sanctioned. He denied of having left the job, on his own.

According to Shri R.K Sharma (RW-1), the petitioner had been granted leave from 9.5.2005 to

16.5.2005 and thereafter, he did not report for duties. As per the certified standing orders of the company, if a workman

remains absent for consecutive days, it is required to be presumed that he had abandoned the job. In the cross

examination, he admitted that no letter was issued to the petitioner to join his duties.

10.

The version of the petitioner (PW-1) that he had completed 240 days in each calendar years goes

unchallenged. Thus, on record, it stand duly proved that before his alleged termination, he had completed 240 days in

twelve preceding calendar months. No doubt, the plea which has been taken by the respondent is that the petitioner had

abandoned his job and did not turn up after 16.5.2005 but there is no evidence, on record, which could go to show that

any letter/notice had been issued to the petitioner to resume his duties on having availed sanctioned leave. It was

required of the respondent to have issued him notice to resume the duties but in the instant case no such procedure had

been followed by the respondent before terminating his services. Thus, the defence plea that the petitioner was on

sanctioned leave w.e.f. 9.5.2005 to 16.5.2005 is of no consequences particularly when the petitioner has stated that his

services were orally terminated and he was not allowed to work. When the respondent fails to prove that the petitioner

had abandoned the job, the version of the petitioner that his services had been orally terminated deserves to be believed.

11.

As already stated above, the petitioner has proved to have completed 240 days in the twelve

preceding calendar months from the date of his alleged termination. The respondent was required to issue notice and to

pay compensation in the prescribed manner if the services of the petitioner were to be terminated. On the record, it

stands proved that neither any notice nor wages in lieu thereof and also retrenchment compensation was paid to the

petitioner. Thus, his termination is held to be illegal and improper. Accordingly, my answer to this issue is in “Yes”.

Issue no. 2

12.

It has been alleged by the petitioner that he is unemployed. However, when regard is given to his

statement (PW-1) it is highlighted that he runs a vegetable shop. In the statement of Shri R.K Sharma (RW-1), it has

also come that he (petitioner) runs a shop at Baddi. Moreover, before this court, it has not been stated by the petitioner

(PW-1) that he is not gainfully employed. Thus, from the record, it is quite evident that he (petitioner) has been running

a vegetable shop and for this reason, it can be that he is gainfully employed. In these circumstances, I am of the

considered view that, he does not deserves to be granted back wages. It has been held by the Hon’ble Supreme court in

2010 (1) SLJ SC 70, M/s Ritu Marbals Vs. Prabhakant Shukla that “full back wages cannot be granted

mechanically, ipon a order of termination be declared illegal. It is further held that reinstatement must not be

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

contributed little or nothing to the industry”. Since, his services were terminated in contravention of the provisions of

the Act, I am of the view that he is entitled to be reinstated in service with seniority and continuity but without back

wages except for the months of April & May, 2005, as admitted by the respondent, in its reply. Accordingly, my

answer to this issue is in “Yes”.

Issue no. 3

13.

While deciding issue no.1, I have already discussed the evidence qua the plea taken by the respondent

that the petitioner had allegedly abandoned the job. Further while returning findings to that issue, I have held that the

petitioner had not abandoned his job but on the contrary, his services were terminated in contravention of the

provisions of the Act. For this reason, this issue does not require any more discussion and accordingly, my answer to it

is in “No”.

Relief

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

he (petitioner) be reinstated in service with seniority and continuity but without back wages except for the months of

April & May, 2005, as admitted by the respondent, in its reply. Consequently, the reference stands answered in favour

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

publication in the official gazette. File, after completion, be consigned to records. Announced in the open court today

this day of 12th August, 2010 in the presence of parties counsels.

A.S. Jaswal,

Presiding Judge,

Industrial Tribunal-cum-

Labur Court, Shimla,

Camp at Solan.

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

SHIMLA.

Ref no. 4 of 2008.

Instituted on 11.4.2008.

Decided on 7.8.2010.

Vishmbari Devi W/o Shri Ram Nath R/o Village & P.O, Kuneran, Tehsil Amb, District Una, HP.

Petitioner.

VS.

The Project Director, Kandi Integrated Water Shed, Tank Road Solan, District Solan, HP. Now, Mid Hills

Water Shed Development Project, Solan District Solan, (HP) through its Chief Project Director.

Respondent.

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

For petitioner:

Shri J.C Bhardwaj, Ld. AR.

For respondent: Shri Jagdish Knawar, Ld. DDA.

AWARD

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

“Whether the termination of services of Smt. Vishmbari Devi W/o Shri Ram Nath w.e.f. 30.9.2005 by the

employer, without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If

not, what relief of service benefits, back wages and amount of compensation the aggrieved workman is

entitled to.”

In nutshell, the case of the petitioner is that in the month of Jan., 1999, she had been engaged in the

Integrated Water Shed Development Project, Kandi (hereinafter referred Kandi Project) and continued to remain as

such till 30.9.2005. It has been alleged that although, she had been initially appointed/engaged in the Kandi Project but

now its successor project is, HP Mid Himalyan Water Shed Development, project (hereinafter referred Mid Himalyan

Project). For this reason, the authorities of the successor project are responsible for all the liabilities of Kandi Project,

including for the services of the employees. As per letter, which was served upon the petitioner, on 20.9.2005, her

services stood terminated w.e.f. 30.9.2005. It is averred that since the respondent did not serve one month’s notice nor

paid wages in lieu thereof and also failed to pay retrenchment compensation, her termination was illegal and unjustified

for being in contravention of the provisions of section 25F of the Industrial Disputes Act, 1947 (hereinafter referred

Act). Moreover, no approval had been obtained, from the appropriate government, regarding her retrenchment. Before

her termination, she had competed 240 days in each calendar year. The respondent was also required to maintain the

seniority of the workmen at State level. Apart from this, her juniors S/Shri Ashok Kumar, Shakti Chand and Kuldeep

Chand, have been allowed to continue, in service of the respondent. In this way, the respondent has also violated the

provisions of section 25G & H of the Act. Since, her services had been terminated in contravention of the provisions of

the Act, she deserves to be reinstatement in the successor project (Mid Himalyan Project), with retrospective effect

alongwith all the consequential benefits.

The petition has been contested, on having raised preliminary objection qua maintainability. On

merits, it has been admitted that the petitioner had been engaged as unskilled labourer, in Kandi Project at Una and that

she continued to remain as such till 30.9.2005 when her services stood terminated automatically, on the culmination of

the project (Kandi). Since, the services of the petitioner stood automatically disengaged, on the completion of the

project, her disengagement cannot be construed to be retrenchment as there was no work available on the culmination

of the project. Even, an offer for engagement, on contractual basis, in Himalyan Project was given to the petitioner but

no response was received from her. Other allegations denied.

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

respondent.

Pleadings of the parties gave rise to the following issues which were struck on 16.5.2009.

Whether the termination of the services of the petitioner by the respondent w.e.f. 30.9.2005 without

complying with the provisions of I.D Act, 1947 is illegal and unjustified?

OPP……..

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

compensation, the petitioner is entitled to?

OPP……….

Whether the present petition is not maintainable as alleged?

OPR………..

Relief.

I have heard the learned AR for the petitioner and Ld. DDA for respondent and have also gone

through the record of the case carefully.

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

the aforesaid issues are as under.

Issue no.1

Yes

Issue no.2

Entitled for continuity in service but without back wages.

Issue no.3

No.

Relief.

Reference answered in favour of the petitioner, per operative part of award.

Reasons for findings

Issue no. 1

Admittedly, the petitioner had been initially engaged as daily wage worker/labourer in the year 1999

in Kandi Project, where she continued, as such, till 30.9.2005, when her services stood disengaged/terminated. It is

further an admitted fact that after the culmination of the Kandi Project, the Mid Himalyan Project came into being, as

its successor project as is evident from the statement of Dr. Lal Chand (RW-1).

Undoubtedly, the contention of the respondent is to this effect that, since the petitioner was daily

wage labourer, her services could not have been taken up in the successor project (Mid Himalyan). It is to be noted that

Dr. Lal Chand Patiyal (RW-1), has stated that since Mid Himalyan Project was declared as successor project of Kandi,

its infrastructure and records were transferred to Mid Himalyan Project. In these circumstances, it is quite apparent that

after the culmination of Kandi Project and coming into being of the successor project (Mid Himalyan), the services of

the petitioner could have been continued instead of terminating the same.

10.

As per Dr. Lal Chand Patiyal (RW-1), who has appeared into the witness box to support the case of

the respondent, on all material particulars, the services of the petitioner had stood terminated automatically, on the

completion of the Kandi Project, on 30.9.2005 and that the notice dated 23.8.2005 Ex. PB had been given to the

petitioner, which was perfectly valid.

11.

The statement of the petitioner (PW-1) also goes to show that he admits of having received notice,

Ex. PB, on 30.9.2005, issued by the respondent, as per which, her services were no longer required w.e.f. 30.9.2005.

She further made it clear that he had completed 240 days in every calendar year, as per mandays chart Ex. PA, and that

before terminating her services, no notice or compensation was paid to her. Besides many juniors to her have been

retained by the respondent after her termination. The perusal of the mandays chart Ex. PA, goes to show that in the

twelve calendar months preceding her termination, the petitioner had completed 240 days. It is true that as per the

contention of the respondent, the services of the petitioner had stood terminated, automatically, w.e.f. 30.9.2005, since,

on the said date, Kandi Project had been completed but in my considered view, the petitioner was required to be given

notice in terms of section 25F of the Act, besides payment of retrenchment compensation. In the statement of Dr. Lal

Chand Patyal (RW-1), it has come that the petitioner had been served with letter of termination, which is Ex. PB, but

there is no evidence, whatsoever, which could go to show that the petitioner had also been paid retrenchment

compensation as per section 25F (b) of the Act. In 2003 LLR 470, S.M Nilajkar & others Vs. Telecom District

Manager, Karnataka, it has been held by the Hon’ble Supreme Court that :

“The closure of a project or scheme by the State Government would be covered by closing down of

undertaking within the meaning of section 25FFF. The workman would therefore be entitled to notice and

compensation in accordance with the provisions of section 25F though the right of employer to close the

undertaking for any reason whatsoever cannot be questioned”.

12.

Having regard to the law laid down by the Hon’ble Supreme Court, it was incumbent upon the

respondent to have paid retrenchment compensation to the petitioner, as per section 25F of the Act, even, if the Kandi

Project was to be closed, on its completion. At this stage, I would also like to point out that the respondent has failed to

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lead any such evidence which could go to prove that at the time of engagement of the petitioner, it had been brought to

her notice that her services were being engaged in a Project which was to last only for a particular length of time. In the

absence of such proof/evidence, the employer (Kandi Project) had not brought to the notice of the petitioner, that the

project was short lived. Since, the services of the petitioner had been terminated in contravention of the provisions of

section 25F of the Act, I have no hesitation in holding that the same are illegal and unjustified to which my answer is in

“Yes”.

Issue no. 2

13.

It is to be noted that there is no evidence, whatsoever, on record, brought by the petitioner which

could go to show that after her termination/disengagement, she had remained not gainfully employed. For her failure, to

bring evidence to this effect, that after having been disengaged from services, he remained not gainfully employed, I

am of the considered view that, she does not deserve to be granted back wages. It has been held by the Hon’ble

Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that “full back wages cannot be

granted mechanically, upon a order of termination be declared illegal. It is further held that reinstatement must not

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

contributed little or nothing to the Industry”. Since, her services were terminated in contravention of the provisions of

the Act, I am of the considered view that, she is entitled to be reinstated in service with seniority and continuity in

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

Issue no. 3

13.

Consequent upon the reference, which has been made to this Court, the petitioner has filed this

petition. It is not understandable as to why this petition is not maintainable. Moreover, at the time of arguments, it

could not been explained on behalf of the respondent, as to why, the petition is not maintainable. Thus, by holding it to

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

Relief

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

she(petitioner) be reinstated in service with seniority and continuity but without back wages. Consequently, the

reference stands answered in favour of the petitioner and against the respondent. Let a copy of this award be sent to the

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

the open court today this day of 7th August, 2010 in the presence of parties counsels.

A.S. JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

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

SHIMLA

Ref no. 5 of 2007

Instituted on 19.2.2007.

Decided on. 4.8.2010.

Gulam, Sabir S/o Shri Abdul Khalik, R/o House no. 124/6, Mohalla Shamsher Ganj, Nahan District Sirmour,

HP.

Petitioner.

VS.

The Managing Director, Himachal Transport Corporation, Shimla-1.

Respondent.

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

For petitioner:

Shri M.L Sharma, Advocate.

For respondent: Shri Rajesh Verma, Advocate.

AWARD

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

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“Whether the action of the Managing Direcotr, Himachal Transport Corporation, Shimla-1 not to promote

Shri Gulam Sabir S/o Shri Abdul Khaliq Fitter against the post of Mechanic due to un-satisfactory work

and conduct is proper and justified? If not, what relief of service benefits and from which date Shri Gulam

Sabir S/o Shri Abdul Khaliq is entitled to”?

Briefly the case of the petitioner is that he was appointed as workshop mazdoor on regular basis

w.e.f. 1.4.1971 and was promoted as fitter in the year, 1987. In the year, 1995, he was fit to be promoted in the

mechanical grade but ignoring his claim, his juniors were promoted. Again, in the year, 1997, he was ignored and his

juniors namely Rajinder Singh & Brij Bhushan were promoted in highly unjustified and arbitrary manner. Although, he

had made several representations, to the concerned authorities, for the redressal of his grievance, but of no avail. In

fact, he had been told that he was not found fit to be promoted by the departmental promotion committee. Further,

promotion from mechanical grade from fitter is not selection post but the same is on the basis of senioritycum- merit.

Since, his service record was good and that for the last 3-5 years, he had not earned any adverse entry, there was no

question to ignore him. Earlier, he had filed an OA no. 2488/1998 for the redressal of his grievances but the same was

withdrawn with the liberty to approach the appropriate forum. Since, he was not promoted, in order to give undue

benefits to his juniors and that he (petitioner) had rendered his service, honestly, to the entire satisfaction of his

superiors, the respondent corporation deserves to be directed to promote him from the date when his juniors were

promoted with all the consequential benefits.

The petition has been contested on having raised preliminary objections including maintainability and

bad for delay and latches. On merits, it has been asserted that the Departmental Promotion Committees (DPCs), which

were held in the years 1995 and 1997, to the post of mechanic, had considered the name of the petitioner alongwith

other eligible candidates, on 4.7.1995 and 9.7.1997 but on both the occasions, he was found unfit for promotion. In

fact, his work and conduct had been found unsatisfactory as he was charge-sheeted and penalized several times. As far

as the representation of the petitioner is concerned, the same was considered and rejected by the authorities and vide

memo dated 16.5.2000, he was informed accordingly. Other allegations denied.

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

respondent.

On the pleadings of the parties, the following issues were struck on 3.1.2008, by the then Presiding

Judge, Labour court, Shimla.

Whether the petitioner has not been promoted due to his own unsatisfactory work and conduct? If so,

its effect?

OPP……..

If issue no.1 is not proved in affirmative, to what relief, the petitioner is entitled to?

OPP……….

Whether the present reference is not maintainable?

OPR………..

Relief.

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

carefully.

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

the aforesaid issues are as under.

Issue no.1

Decided accordingly in favour of the respondent.

Issue no.2

Since, issue no.1 stands decided in favour of the respondent, this issue becomes redundant.

Issue no.4

No.

Relief.

Reference answered against the petitioner, per operative part of award.

Reasons for findings

Issue no. 1

Admittedly, the petitioner had been promoted to the post of fitter, on 6.10.1987, from a workshop

mazdoor against which post, he had been engaged/appointed on 1.4.1971. Although, the contention of the petitioner is

that he has been illegally and unjustifiably ignored, for being promoted to the grade of mechanic in the years,, 1995 and

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6415

1997 but the defence version is to this effect that the case of the petitioner had been duly considered by the

departmental promotion committee in the said years but since he was not found fit to be promoted, for this reason, he

could not be promoted.

Shri Ramesh Dogra (RW-1) has stated from the relevant record that since, the service record of the

petitioner was not good/satisfactory, for this reason, he was not promoted by the DPCs which were held on 4.7.1995 &

9.7.1997. Ex. RW-1/A, is the copy of his history sheet. A memorandum was issued to the petitioner on 15.10.1993, the

copy of which is Ex. RW-1/B. Ex. RW-1/C is the copy of order dated 20.1.1994. Similarly, Ex. RW-1/D, is the copy of

memorandum dated 16.1.1993 and Ex. RW-1/E, the copy of order dated 15.7.1994. As per show cause notice dated

16.1.1993, the petitioner had been issued warning on 15.7.1994. Thereafter, another show cause notice was issued to

him, on 10.2.1998, the copy of which is Ex. RW-1/F. As per this notice, he had been censured as per order dated

18.3.1997, the copy of which is Ex. RW-1/G. On 21.7.1997, another charge sheet was issued to the petitioner, copy of

which is Ex. RW-1/H. The petitioner had again been censured vide Ex. RW-1/A. Another, charge sheet was issued to

him, copy of which is Ex. RW-1/M, one increment of the petitioner was stopped. Another charge sheet dated

13.5.1999, Ex. RW-1/N was issued and in consequence thereof, the petitioner was warned to be careful in future as per

order dated 19.7.1997, copy of which is Ex. RW-1/O. The petitioner had also filed representation, which was dismissed

on 16.5.2000, vide Ex. RW-1/P. The petitioner could not be promoted as his service record was not satisfactory. In the

cross examination, he admitted that ACR’s for the three years prior to 1995 had been conveyed to the petitioner but

regarding the same, he had not produced the record in the court. He denied that since, the petitioner had been raising

the demands of the employees, for being President of the union, for this reason, he was served with charge sheets.

Record pertaining to DPCs, which were held in the years, 1995 & 1997, has not be produced in the court.

10.

Petitioner (PW-1) while appearing in the witness box has supported this fact that in the year, 1995, he

was not promoted to the post of mechanical grade and at that time his juniors S/Shri Brij Bhushan and Sita Ram, were

promoted. Annual confidential reports had not been conveyed to him either before, 1995 or 1997. Although, he had

represented several times but to no avail. In the cross examination, he has admitted the case of the respondent that on

various occasions, he was charge sheeted and found guilty and that his one increment was also stopped by the

disciplinary authority.

11.

Shri Lal Chand (PW-2) who has been examined, as a witness, by the petitioner has also supported

this fact that he (petitioner) had been penalized for misconduct and indiscipline several times and in this regard, entries

were made in his service book. In the cross examination, he admitted that the name of the petitioner was considered for

promotion but he was ignored as he had been found guilty, several times, after conducting due enquiries against him.

12.

Even, from the evidence, which has been led by the petitioner, particularly, statement of Shri Lal

Chand (PW-2) it is abundantly clear that on both the occasions i.e in the years 1995 & 1997, when DPCs were held, the

name of the petitioner was considered but he had not been found fit for promotion, for the reason that in the enquiries,

which had been conducted against him, he was found guilty several times.

12.

Shri Ramesh Dogra (RW-1), has also proved this fact that in the DPCs which were held on 4.7.1995

& 9.7.1997, the name of the petitioner was considered but he could not be promoted as his service record was not good.

He (RW-1) has further proved, on record, the various charge sheets/ show cause notices which had been issued to the

petitioner and the various orders passed thereon. In the cross examination, the petitioner (PW-1) has himself admitted

the case of the respondent that many times, he had been issued charge sheets and found guilty for misbehaving and that

the disciplinary authority also stopped his increment.

13.

In the face of the documentary as well as oral evidence, it is abundantly clear that the name of the

petitioner had been duly considered by the Departmental Promotion Committee but on account of his service record, he

could not be promoted and for this reason, his juniors were given promotion. The petitioner has not taken any steps to

get the relevant record summoned in order to show that his service record which had been considered by the DPCs was

better than the workmen/employees who had been promoted by ignoring him. Since, it is writ-large, on the record, that

on many occasions, he was censured/issued warnings and also that his one increment was ordered to be stopped by the

disciplinary authority, the contention of the petitioner that he had been illegally and unjustifiably superseded does not

carry any weight. Consequently, I hold that the respondent has proved with satisfactory evidence, particularly

documentary, that the petitioner had been ignored by the DPCs which were held in the years, 1995 & 1997, for the

reason that his service record was not satisfactory/upto the mark. Accordingly, this issue is decided in favour of the

respondent and against the petitioner.

Issue no. 2

14.

Since, while deciding issue no.1 above, I have held that the petitioner had not been promoted for the

reason that his service record was not satisfactory, this issue becomes redundant.

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Issue no. 3

15.

It is not understandable as to why this reference is not maintainable. Apart from it, the learned

counsel for respondent could not explain as to why this reference is not maintainable. Accordingly, by holding it to be

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

Relief

As a sequel to my findings on the aforesaid issues, the claim of the petitioner is dismissed with the result, the

reference stands answered against the petitioner and in favour of the respondent. Let a copy of this award be sent to the

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

the open court today this day of 4th August, 2010 in the presence of parties counsels.

A.S. JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_____________

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

SHIMLA

Ref no. 5 of 2008.

Instituted on 11.4.2008.

Decided on 7.8.2010.

Dev Raj, S/o Shri Sharan Dass R/o Village & PO Kuneran, Tehsil Amb, District Una, HP.

Petitioner.

VS.

The Project Director, Kandi Integrated Water Shed, Tank Road Solan, District Solan, HP. Now, Mid Hills

Water Shed Development Project, Solan District Solan, (HP) through its Chief Project Director.

Respondent.

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

For petitioner:

Shri J.C Bhardwaj, Ld. AR.

For respondent: Shri Jagdish Knawar, Ld. DDA.

AWARD

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

“Whether the termination of services of Shri Dev Raj, S/o Shri Sharan Dass w.e.f. 30.9.2005 by the

employer, without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If

not, what relief of service benefits, back wages and amount of compensation the aggrieved workman is

entitled to.”

In nutshell, the case of the petitioner is that in the month of Jan., 1991, he had been engaged in the

Integrated Water Shed Development Project, Kandi (hereinafter referred Kandi Project) and continued to remain as

such till 30.9.2005. It has been alleged that although, he had been initially appointed/engaged in the Kandi Project but

now its successor project is, HP Mid Himalyan Water Shed Development, project (hereinafter referred Mid Himalyan

Project). For this reason, the authorities of the successor project are responsible for all the liabilities of Kandi Project,

including for the services of the employees. As per letter, which was served upon the petitioner, on 20.9.2005, his

services stood terminated w.e.f. 30.9.2005. It is averred that since the respondent did not serve one month’s notice nor

paid wages in lieu thereof and also failed to pay retrenchment compensation, his termination was illegal and unjustified

for being in contravention of the provisions of section 25F of the Industrial Disputes Act, 1947 (hereinafter referred

Act). Moreover, no approval had been obtained, from the appropriate government, regarding his retrenchment. Before

his termination, he had competed 240 days in each calendar year. The respondent was also required to maintain the

seniority of the workmen at State level. Apart from this, his juniors S/Shri Ashok Kumar, Shakti Chand and Kuldeep

jkti=] fgekpy izns'k] 6 fnlEcj] 2010@15 vxzgk;.k] 1932

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Chand, have been allowed to continue, in service of the respondent. In this way, the respondent has also violated the

provisions of section 25G & H of the Act. Since, his services had been terminated in contravention of the provisions of

the Act, he deserves to be reinstatement in the successor project (Mid Himalyan Project), with retrospective effect

alongwith all the consequential benefits.

The petition has been contested, on having raised preliminary objection qua maintainability. On

merits, it has been admitted that the petitioner had been engaged as unskilled labourer, in Kandi Project at Una and that

he continued to remain as such till 30.9.2005 when his services stood terminated automatically, on the culmination of

the project (Kandi). Since, the services of the petitioner stood automatically disengaged, on the completion of the

project, his disengagement cannot be construed to be retrenchment as there was no work available on the culmination

of the project. Even, an offer for engagement, on contractual basis, in Himalyan Project was given to the petitioner but

no response was received from him. Other allegations denied.

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

respondent.

Pleadings of the parties gave rise to the following issues which were struck on 16.5.2009.

Whether the termination of the services of the petitioner by the respondent w.e.f. 30.9.2005 without

complying with the provisions of I.D Act, 1947 is illegal and unjustified?

OPP……..

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

compensation, the petitioner is entitled to?

OPP……….

Whether the present petition is not maintainable as alleged?

OPR………..

Relief.

I have heard the learned AR for the petitioner and Ld. DDA for respondent and have also gone

through the record of the case carefully.

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

the aforesaid issues are as under. Issue no.1 Yes Issue no.2 Entitled for continuity in service but without back wages.

Issue no.3

No.

Relief.

Reference answered in favour of the petitioner, per operative part of award.

Reasons for findings

Issue no. 1

Admittedly, the petitioner had been initially engaged as daily wage worker/labourer in the year 1991

in Kandi Project, where he continued, as such, till 30.9.2005, when his services stood disengaged/terminated. It is

further an admitted fact that after the culmination of the Kandi Project, the Mid Himalyan Project came into being, as

its successor project as is evident from the statement of Dr. Lal Chand (RW-1).

Undoubtedly, the contention of the respondent is to this effect that, since the petitioner was daily

wage labourer, his services could not have been taken up in the successor project (Mid Himalyan). It is to be noted that

Dr. Lal Chand Patiyal (RW-1), has stated that since Mid Himalyan Project was declared as successor project of Kandi,

its infrastructure and records were transferred to Mid Himalyan Project. In these circumstances, it is quite apparent that

after the culmination of Kandi Project and coming into being of the successor project (Mid Himalyan), the services of

the petitioner could have been continued instead of terminating the same.

10.

As per Dr. Lal Chand Patiyal (RW-1), who has appeared into the witness box to support the case of

the respondent, on all material particulars, the services of the petitioner had stood terminated automatically, on the

completion of the Kandi Project, on 30.9.2005 and that the notice dated 23.8.2005 Ex. PB had been given to the

petitioner, which was perfectly valid.

11.

The statement of the petitioner (PW-1) also goes to show that he admits of having received notice,

Ex. PB, on 30.9.2005, issued by the respondent, as per which, his services were no longer required w.e.f. 30.9.2005. He

further made it clear that he had completed 240 days in every calendar year, as per mandays chart Ex. PA, and that

before terminating his services, no notice or compensation was paid to him. Besides many juniors to him have been

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retained by the respondent after his termination. The perusal of the mandays chart Ex. PA, goes to show that in the

twelve calendar months preceding his termination, the petitioner had completed 240 days. It is true that as per the

contention of the respondent, the services of the petitioner had stood terminated, automatically, w.e.f. 30.9.2005, since,

on the said date, Kandi Project had been completed but in my considered view, the petitioner was required to be given

notice in terms of section 25F of the Act, besides payment of retrenchment compensation. In the statement of Dr. Lal

Chand Patyal (RW-1), it has come that the petitioner had been served with letter of termination which is Ex. PB but

there is no evidence, whatsoever, which could go to show that the petitioner had also been paid retrenchment

compensation as per section 25F (b) of the Act. In 2003 LLR 470, S.M Nilajkar & others Vs. Telecom District

Manager, Karnataka, it has been held by the Hon’ble Supreme Court that :

“The closure of a project or scheme by the State Government would be covered by closing down of

undertaking within the meaning of section 25FFF. The workman would therefore be entitled to notice and

compensation in accordance with the provisions of section 25F though the right of employer to close the

undertaking for any reason whatsoever cannot be questioned”.

12.

Having regard to the law laid down by the Hon’ble Supreme Court, it was incumbent upon the

respondent to have paid retrenchment compensation to the petitioner, as per section 25F of the Act, even, if the Kandi

Project was to be closed, on its completion. At this stage, I would also like to point out that the respondent has failed to

lead any such evidence which could go to prove that at the time of engagement of the petitioner, it had been brought to

his notice that his services were being engaged in a Project which was to last only for a particular length of time. In the

absence of such proof/evidence, the employer (Kandi Project) had not brought to the notice of the petitioner, that the

project was short lived. Since, the services of the petitioner had been terminated in contravention of the provisions of

section 25F of the Act, I have no hesitation in holding that the same are illegal and unjustified to which my answer is in

“Yes”.

Issue no. 2

13.

It is to be noted that there is no evidence, whatsoever, on record, brought by the petitioner which

could go to show that after his termination/disengagement, he had remained not gainfully employed. For his failure, to

bring evidence to this effect, that after having been disengaged from services, he remained not gainfully employed, I

am of the considered view that, he does not deserve to be granted back wages. It has been held by the Hon’ble

Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that “full back wages cannot be

granted mechanically, upon a order of termination be declared illegal. It is further held that reinstatement must not

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

contributed little or nothing to the Industry”. Since, his services were terminated in contravention of the provisions of

the Act, I am of the considered view that, he is entitled to be reinstated in service with seniority and continuity in

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

Issue no. 3

13.

Consequent upon the reference, which has been made to this Court, the petitioner has filed this

petition. It is not understandable as to why this petition is not maintainable. Moreover, at the time of arguments, it

could not been explained on behalf of the respondent, as to why, the petition is not maintainable. Thus, by holding it to

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

Relief

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

he(petitioner) be reinstated in service with seniority and continuity but without back wages. Consequently, the

reference stands answered in favour of the petitioner and against the respondent. Let a copy of this award be sent to the

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

the open court today this day of 7th August, 2010 in the presence of parties counsels.

A.S. JASWAL,

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_____________

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

SHIMLA

Ref no. 6 of 2008.

Instituted on 11.4.2008.

Decided on 7.8.2010.

Ram Swarooop S/o Shri Varyan Singh R/o Village Dandadi, P.O Churdu, Tehsil Amb, District Una, HP.

Petitioner.

jkti=] fgekpy izns'k] 6 fnlEcj] 2010@15 vxzgk;.k] 1932

6419

VS.

The Project Director, Kandi Integrated Water Shed, Tank Road Solan, District Solan, HP. Now, Mid Hills

Water Shed Development Project, Solan District Solan, (HP) through its Chief Project Director.

Respondent.

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

For petitioner:

Shri J.C Bhardwaj, Ld. AR.

For respondent: Shri Jagdish Knawar, Ld. DDA.

AWARD

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

“Whether the termination of services of Shri Ram Swaroop S/o Shri Varyam Singh w.e.f. 30.9.2005 by the

employer, without complying with the provisions of Industrial Disputes Act, 1947 is legal and justified? If

not, what relief of service benefits, back wages and amount of compensation the aggrieved workman is

entitled to.”

In nutshell, the case of the petitioner is that in the month of October, 1995, he had been engaged in

the Integrated Water Shed Development Project, Kandi (hereinafter referred Kandi Project) and continued to remain as