jkti=] fgekpy izns'k

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f”keyk] “kfuokj] 3 ekpZ] 2012@13 QkYxqu 1933

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2 , 02^nd February, 2012

No.— Sharm (A) 7-1/2005-11 (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:-

244&jkti=@2012&3&3&2012 ¼6109½

6110

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BY order,

Sd/-

ACS ( Labour & Employment).

__________

IN THE COURT OF D.K SHARMA, PRESIDING JUDGE, INDUSTRIAL TRIBUNALCUM-

LABOUR COURT, SHIMLA, (H.P.)

Ref No. 379 of 2002.

Instituted on. 16.12.2002.

Decided on 11.11.2011.

General Secretary, Bhartiya Mazdoor Sangh, District Shimla Office Nagar Nigam Mazdoor

Sangh, Lakkar Bazar Shimla 171001

..Petitioner.

Vs.

Executive Engineer, H.P PWD, Circle-2, Shimla 171002

..Respondent.

Reference under section 10 Industrial

Disputes Act, 1947.

For petitioner :

Shri Rahul Mahajan, Advocate

For respondent :

Shri Jagdish kanwar, Dy. DA.

AWARD

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

^^fd D;k egklfpo] Hkkjrh; entwj la?k] ftyk f”keyk ds ekax i= fnukad 18&6&2001 ¼izfr

layXu½ ds vuqlkj v/kh{k.k vfHk;ark fgekpy izns”k yksd fuekZ.k foHkkx ldZy&2] f”keyk&3 ds

le{k loZJh Hkxr jke] rkjk pUn ,oa es/k flag dkjisaVj xzsM&4 dks fnukad 13&12&89 ls osrueku

950&1800 rFkk fnukad 1&1&96 ls la”kksf/kr osrueku 3120&5160 dh ekax dh tkuk mfpr ,oa

U;k;laxr gS \ vxj gka] rks lEcfU/kr dkjisaVj fdl osrueku] ,fj;j] ,oa vU; lsok ykHkksa ds ik=

gS \**

6111

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It is pleaded by the petitioner union through its General Secretary that initially

S/Shri Bhagat Ram, Tara Chand and Medh Ram were appointed as Carpenters Grade-1 (now

Grade-IV) on daily waged muster rolls as highly skilled workers. The dates of their

appointments/engagement and work charge status are as under:

Name

Date of initial

engagement

Designation

Date of work

charge status

Pay scale

Bhagat Ram

1980

Carpenter Grade-I

1.1.1998

800-1440

Tara Chand

1980

Carpenter Grade-I

1.1.1994

800-1440

Megh Ram

1980

Carpenter Grade-I

1.1.1994

800-1440

It is also averred that the petitioner workmen were regularized as Carpenters work

charge in the pay scale of Rs. 800-1400 + other admissible allowances from time to time instead of

pay scale of Carpenter Grade-IV Rs. 1200-2100. The category of Carpenters has been re-designated

as skilled worker vide notification dated 16th August, 1980 by the Himachal Pradesh Government.

The State of H.P. has adopted the Punjab Pattern of scales for its employees including work charge.

State of Punjab has fixed the lowest pay scale of Carpenters at Rs. 950-1800 with initial start of Rs.

1000/- with effect from 1.1.1986 and Rs. 3120-5160 with effect from 1.1.1996. The Government of

H.P. has revised the pay scale of the categories of skilled and semi skilled posts working under

various departments of Himachal Pradesh Government from Rs. 400-600 and 400-660 to Rs. 950-

1800 with initial start of Rs. 1000/- with effect from 1.1.1986. The Government of H.P. has fixed

the Carpenters Grade-IV in the pay scale of Rs. 1200-2100. The petitioner workmen are entitled to

revised pay scale of Rs. 3120-5160 with effect from 1.1.1996. The post of Carpenter has also been

re-designated as Junior Technician per notification dated 30th August, 1997. The petitioner

workmen have been fixed in the pay scale of Rs. 2520-4140 with initial start of Rs. 2620 instead of

Rs. 3120-5160 and have not been designated as Junior Technician. All workmen are entitled to the

pay scale of Rs. 950-1800 with initial start of Rs. 1,000/-+ other admissible allowances with effect

from their date of appointment before 31/12/1995 and revised pay scale of Rs. 3120-5160 with

effect from 1/1/1996 with all consequential benefits.

The claim is opposed by the respondent on legal objections regarding

maintainability and jurisdiction. On merits, after admitting that Shri Megh Ram was carpenter on

daily wages with effect from 1980 stated that S/Shri Megh Ram and Tara Chand were made work

charge with effect from 1.1.1994 and Shri Bhagat Ram was made work charge carpenter in the

lowest category from 1.1.1997. The category of Grade-II and Grade-III Carpenter was clubbed and

re-designated as Carpenter Grade-III in the pay scale of Rs. 950-1800. The regularization of daily

waged was made on work charged Carpenter Grade-IV in accordance with Policy as well as

Recruitment and Promotion Rules. The pre-revised scale of Rs. 1200-2130/- has been allowed to

Carpenter Grade-II category. The posts of various categories including Carpenters have been

clubbed and re-designated per notification dated 6.4.1995 as under:-

Earlier Designation

The existing designation after

clubbing

Pay scale

1. Carpenter Grade-I.

Carpenter Grade-IV.

830-1470 (Actual scale Rs.

800-1455)

2. Carpenter Grade-II.

Carpenter Grade-III.

Rs. 950-1800

3. Carpenter Grade-IV.

Carpenter Grade-II.

Rs. 1200-2130

4. Carpenter Grade-V.

Carpenter Grade-I.

Rs. 1350-2410

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The petitioner workmen are Carpenters Grade-IV in the lowest grade and have been

given the pay scale of Rs. 2720-4260. The Carpenters in the pre revised pay scale of Rs. 950-1800

with initial start of Rs. 1000/- revised to Rs. 3120-5160/- have been re-designated as Junior

Technicians and the Carpenters Grade-IV in the pre-revised scale of Rs. 800-1455 cannot be

designated as Junior Technicians. The Grade-IV Carpenters in the pay scale of Rs. 800-1455 have

been correctly given the scale of Rs. 2720-4260/-.

The following points and issues arise for determination in this case:

Whether the demand of petitioners namely Bhagat Ram, Tara Chand and Megh Ram

Carpenter Grade-IV for grant of pay scale of Rs 950-1800/-w.e.f. 13/12/1989 and

revised pay scale of Rs. 3120-5160 w.e.f. 1/1/1996 is proper, just and legal . . OPP.

If point no.1 is proved, to what pay scales, arrears and service benefits the

petitioners are entitled to

. .OPP.

Whether the petition is not maintainable . . OPR.

Relief.

For the reasons to be recorded hereinafter, my findings on the aforesaid points/issues

are as under:

Point No.1

No.

Point No.2

Not entitled to any benefits.

Issue No.3

No.

Relief.

Reference answered in negative per operative part of

award.

Reasons for findings :

Point No.1 :

The petitioners prior to conferment of work charge status were daily waged workers.

The scale of Carpenter Grade-1 (now Grade-IV) vide notification dated December, 1976 was Rs.

80-120 which was revised to Rs. 325-495 vide notification dated 14.6.1981. The scale of Carpenter

Grade-1 was revised to Rs. 810-1440 vide notification dated 15.12.1989 which was reduced to Rs.

800-1455 vide notification dated 12.2.1997.

The categories of Carpenters were clubbed vide notification dated 6.4.1995 as

follows:

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13.

The scales revised by Pubjab Government were also given by Himachal Pradesh

Government vide notification dated 1st September, 1998 which are as follows:-

Sl.

No.

Designation/name

of category.

Existing pay scale in rupees.

Revised pay scale in rupees

Remarks

“VII Skilled and Semi Skilled

Helper

800-1455

2720-4260

Junior Technician

950-1800 (with initial start

of Rs. 1,000/-)

3120-5160

The

posts

junior

technicians

shall

not

exceed 50% of the posts

of technicians of various

levels.

Technician

Grade-III

1200-2130

4020-6200

This

level

shall

not

exceed 30% of the posts

Technicians

various levels. The level

of technician Grade-III

shall be redesignated as

technician Grade-II.

6115

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Technician

Grade-II.

1365-2410

4550-7220

This

level

shall

not

exceed 20% of the posts

Technicians

various levels. The level

of technician Grade-II

shall be redesignated as

technician Grade-I.

14.

The Himachal Pradesh Government vide notification dated 30^th August, 1997

revised the pay scales of skilled and semi skilled posts including work charge in the scale of

Rs. 400-600 and Rs. 400-660 under various departments of Himachal Pradesh and granted pay

scale of Rs. 950-1800 with initial start of Rs. 1,000/-with effect from 1.1.1986 to Carpenter Grade-

II and Grade-III only per annexure and such categories only were designated as Junior Technicians.

15.

The aforesaid notification dated 6.4.1995 makes it evident that carpenters were re-

designated as Carpenter Grade-IV, Grade-III, Grade-II and Grade-I which categories were earlier

designated as Carpenter Grade-1, Grade-II, Grade-III and Grade-IV and the pre revised and revised

scales of these posts per notification dated 14.1.1981 were as follows:-

Grade

Pay Scales

Revised pay scales.

80-120

325-495

100-160

400-600

III

180-260

400-660

140-300

450-560

16.

The petitioner workmen were daily wagers and after conferment of work charge

status they were designated as carpenters Grade-IV. The scale of Carpenter Grade-IV was initially

Rs. 80-120 which was revised to Rs. 325-495 and was further revised to Rs. 800-1455 with effect

from 1.1.1986 after corrigendum dated 12.2.1997. The scales were revised to Rs. 2720-4260 with

effect from 1st January, 1996. The performance of semi skilled work cannot be equated with the

skilled worker to hold that there is any discrimination in grant of scales. The petitioner

workmen/workmen were not carpenters Grade-II and Grade-III before and after clubbing and

benefit of fixation of pay of other Carpenters Grade-II in the pay scale of Rs. 950-1800 of Rs.

3120-5160 per Ex. P-4 to Ex. P-12, Ex. P-15 to Ex. P-18, Ex. P-20 to Ex. P-31, Ex. P-34, Ex. P-36

to Ex. P-104, Ex. P-106 to Ex. P-111, Ex. P-113, Ex. P-114 and Ex. P-116 to Ex. P-121 cannot be

availed by the petitioners. So, the petitioner workmen are not entitled to the scale of Rs. 950-1800

with initial start of Rs. 1,000/- with effect from 1.1.1986 and revised scale of Rs. 3120-5160 with

effect from 1.1.1996. Consequently, the petitioner workmen are also not entitled to be designated as

Junior Technicians. The point is answered against the petitioner workmen.

Issue No.2 :

17.

The petitioner workmen as held on findings on issue no.1 are not entitled to the scale

of Rs. 950-1800 with initial start of Rs. 1,000/- with effect from 1.1.1986 and revised scale Rs.

3120-5160 with effect from 1.1.1996. Consequently, the petitioner workmen are also not entitled to

be designated as Junior Technicians. The point is answered against the petitioner workmen.

Issue No.3 :

18.

The reference has been made by the government for adjudication of the dispute

between the parties. The reference as such is maintainable. This issue is answered in favour of the

petitioner.

Relief.

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In the result, the reference is answered in negative. Consequently, petitioner workmen are

not entitled to the scale of Rs. 950-1800 with initial start of Rs. 1,000/- with effect from 1.1.1986

and revised scale of Rs. 3120-5160 with effect from 1.1.1996. Let a copy of this award be sent to

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

to records.

Announced in the open court today on this 11th day of November, 2011.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

_________

IN THE COURT OF D.K SHARMA, PRESIDING JUDGE, INDUSTRIAL TRIBUNALCUM-

LABOUR COURT, SHIMLA, (H.P)

Ref No. 378 of 2002.

Instituted on. 16.12.2002.

Decided on 11.11.2011.

General Secretary, Bhartiya Mazdoor Sangh, District Shimla Office Nagar Nigam Mazdoor

Sangh, Lakkar Bazar Shimla 171001 ..Petitioner.

Vs.

Executive Engineer, H.P PWD, Circle-2, Shimla 171002 ..Respondent.

Reference under section 10 Industrial

Disputes Act, 1947.

For petitioner :

Shri Rahul Mahajan, Advocate

For respondent :

Shri Jagdish kanwar, Dy. DA.

AWARD

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

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It is pleaded by the petitioner union through its General Secretary that initially

S/Shri Roop Ram, Hira Singh, Chottey Lal, Ram Lok, Balkrishan, Paras Ram and Nageen Chand

were appointed as Carpenters Grade-1 (now Grade-IV) on daily waged muster rolls as highly

skilled workers. The dates of their appointments/engagement and work charge status are as under:

It is also averred that the petitioner workmen were regularized as Carpenters work

charge in the pay scale of Rs. 810-1470 instead of Rs. 950-1800 with initial start of Rs. 1000/-. The

category of Carpenters has been re-designated as skilled worker vide notification dated 16th

August, 1980 by the Himachal Pradesh Government. The State of H.P. has adopted the Punjab

Pattern of scales for its employees including work charge. State of Punjab has fixed the lowest pay

scale of Carpenters at Rs. 950-1800 with initial start of Rs. 1000/- with effect from 1.1.1986 and

Rs. 3120-5160 with effect from 1.1.1996. The Government of H.P. has revised the pay scale of the

categories of skilled and semi skilled posts working under various departments of Himachal

Pradesh Government from Rs. 400-600 and 400-660 to Rs. 950-1800 with initial start of Rs. 1000/-

with effect from 1.1.1986. The Government of H.P. has fixed the Carpenters Grade-IV in the pay

scale of Rs. 1200-2100. The petitioner workmen are entitled to revised pay scale of Rs. 3120-5160

with effect from 1.1.1996. The post of Carpenter has also been re-designated as Junior Technician

per notification dated 30^th August, 1997. The petitioner workmen have been fixed in the pay scale

of Rs. 2520-4140 with initial start of Rs. 2620 instead of Rs. 3120-5160 and have not been

designated as Junior Technician. All workmen are entitled to the pay scale of Rs. 950-1800 with

initial start of Rs. 1,000/-+ other admissible allowances with effect from their date of appointment

before 31/12/1995 and revised pay scale of Rs. 3120-5160 with effect from 1/1/1996 with all

consequential benefits.

The claim is opposed by the respondent on legal objections regarding

maintainability and jurisdiction. On merits, it is stated that S/Shri Roop Ram, Hira Singh and

Chotte Lal were appointed in the pay scale of Rs. 810-1440. Shri Ram Lok and Bal Krishan were

appointed as Carpenters Grade-I on muster roll. Shri Paras Ram was appointed as beldar with effect

from 1/1984 to 3/88 and Carpenter 2nd Class from 4/1988 to 6/1990. They were appointed in the

pay scale of Rs. 810-1470/-admissible to the post of Carpenter Grade-IV which was reduced to Rs.

800-1455/- in respect of Carpenters appointed on or before 1.1.1993. The category of Grade-II and

Grade-III Carpenter was clubbed and re-designated as Carpenter Grade-III in the pay scale of Rs.

950-1800. Shri Nageen Chand was appointed in the pay scale of Rs. 2820-4400/- with effect from

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1/4/1998 that is the date of qualifying service for work charged status on daily wages basis per

Policy of the Government. The regularization of daily waged was made on work charged Carpenter

Grade-IV in accordance with Policy as well as Recruitment and Promotion Rules. The pre-revised

scale of Rs. 1200-2100/- has been allowed to Carpenter Grade-II category. The posts of various

categories including Carpenters have been clubbed and re-designated per notification dated

6.4.1995 as under:-

The petitioner workmen are Carpenters Grade-IV in the lowest grade and have been

given the pay scale of Rs. 2720-4260. The Carpenters in the pre revised pay scale of Rs. 950-1800

with initial start of Rs. 1000/- revised to Rs. 3120-5160/- have been re-designated as Junior

Technicians and the Carpenters Grade-IV in the pre-revised scale of Rs. 800-1440 cannot be

designated as Junior Technicians. The Grade-IV Carpenters in the pay scale of Rs. 800-1440 have

been correctly given the scale of Rs. 2720-4260/-.

Issues finally emerging in this reference per orders dated 4.5.2005 and 1.6.2011 are

as under.

1. Whether the demand of petitioners namely Bal Krishan, Chotte Lal, Roop Ram,

Paras Ram, Ram Lok, Nageen Chand and Heera Singh Carpenter Grade-IV for

grant of pay scale of Rs 950-1800/- w.e.f. 13/12/1989 and revised pay scale of

Rs. 3120-5160 w.e.f. 1/1/1996 is proper, just and legal ?

. .OPP

2. If issue no.1 is proved, to what pay scales, arrears and service benefits the

petitioner are entitled to ? . .OPP

Whether the petition is not maintainable? . . OPR

Relief.

For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as

under:

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Issue No.1

No.

Issue No.2

Not entitled to any benefits.

Issue No.3

No.

Relief.

Reference answered in negative per operative part of award.

Reasons for findings :

Issue No.1 :

The petitioners prior to conferment of work charge status were daily waged workers.

The scale of Carpenter Grade-1 (now Grade-IV) vide notification Ex. RW-2/A dated December,

1976 was Rs. 80-120 which was revised to Rs. 325-495 vide notification Ex. RW-2/C dated

14.6.1981. The scale of Carpenter Grade-1 was revised to Rs. 810-1440 vide notification Ex. RW-

2/D dated 15.12.1989 which was reduced to Rs. 800-1455 vide Ex. PW-2/L notification dated

12.2.1997.

The categories of Carpenters were clubbed vide notification Ex. RW-2/J dated

6.4.1995 as follows:

Earlier Designation

The existing designation after clubbing

Pay scale

5. Carpenter Grade-I.

Carpenter Grade-IV.

830-1470 (Actual scale Rs.

800-1455)

6. Carpenter Grade-II.

Carpenter Grade-III.

Rs. 950-1800

7. Carpenter Grade-IV.

Carpenter Grade-II.

Rs. 1200-2130

8. Carpenter Grade-V.

Carpenter Grade-I.

Rs. 1350-2410

10.

The scales of skilled and semi skilled staff were revised by the Punjab Government

vide notification Ex. PW-1/J dated 15.6.1990 with effect from 1.1.1986 are as follows:

Sl.

No.

Post

Existing

scale

in rupees

Revised scale in rupees

Remarks

“IV . Skilled and Semi Skilled Staff:

All posts in the

existing

scale

mentioned

column 3.

Rs. 325-495

Rs.

810-20-95025-1,200-30-

1,440

To be designated

as helper.

All posts in the

existing

scale

mentioned

column 1.

Rs. 400-600.

Rs. 400-660

Rs. 950-25-1200-30-1500-40-

1800 with initial start of Rs.

1000/-.

To be designated

Junior

Technicians.

All posts in the

existing

scale

mentioned

column 1.

Rs. 400-600

450-700,

510-

800, 525-825

Rs. 1200-2100

To be designated

as Technician

Grade-III.

All posts in the

existing

scale

mentioned.

column 3.

Rs. 510-940

Rs.1350-30-1560-40-2000-50-

2400.

To be designated

Technician

Grade-II.

All posts in the

existing scale

mentioned

column 3.

Rs. 750-1,000/-

Rs. 600-1,000/-

Rs. 1410-30-1560-40-2000—

50-2400-60-2640

To be designated

as Technician

Grade-I.

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11.

This notification makes it evident that the categories which were in the scale of Rs.

325-495 were given revised scale of Rs. 810-1440 and the categories which were in the scale of Rs.

400-600 and Rs. 400-660 were given the revised scale of Rs. 950-1800 with initial start of Rs.

1,000/-. The categories in the scale of Rs. 325-495 have been designated as helper and the category

in the scale of Rs. 950-1800 was designated as Junior Technicians.

12.

The scale of different categories of staff in Punjab came to be revised with effect

from 1.1.1996 per notification Ex. PW-1/K dated 19th May, 1998 and the revised scale of skilled

and semi skilled staff per this notification is as follows:-

Sl.

No.

Designation/name of

category.

Existing pay scale in

rupees.

Revised pay

scale in rupees

Remarks

“VII. Skilled and semi skilled staff :

Helper

800-1455

2720-4260

Junior Technician

950-1800 (with initial

start of Rs. 1,000/-)

3120-5160

The

post

Junior

Technician

shall

not

exceed 50% of the posts

of technicians of various

levels.

Technician Grade-III

1200-2130

4020-6200

This

level

shall

not

exceed 30% of the posts

Technicians

various levels. The level

of Technicians Grade-III

shall be re-designated as

Technicians Grade-II.

Technician Grade-II

1365-2410

4550-7220

This

level

shall

not

exceed 20% of the posts

Technicians

various

levels.

The

levels of.

Technician Grade-I

1410-2480

4550-7220

Technicians

Grade-II

and Technicians Grade-I

shall be merged and

redesignated

Technicians Grade-I.

13.

The scales revised by Pubjab Government were also given by Himachal Pradesh

Government vide notification Ex. PW-1/L dated 1st September, 1998 which are as follows:-

Sl.

No.

Designation/name of category.

Existing pay scale

in rupees.

Revised pay scale

in rupees

Remarks

“VII Skilled and Semi Skilled :

Helper

800-1455

2720-4260

Junior Technician

950-1800

(with

initial start of Rs.

1,000/-)

3120-5160

The

posts

junior technicians

shall not exceed

50% of the posts

of technicians of

various levels.

Technician Grade-III

1200-2130

4020-6200

This level shall

not exceed 30%

6121

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of the posts of

Technicians

various

levels.

The

level

technician Grade-

III

shall

redesignated

technician Grade-

II.

Technician Grade-II.

1365-2410

4550-7220

This level shall

not exceed 20%

of the posts of

Technicians

various

levels.

The

level

technician Grade-

shall

redesignated

technician

Grade-I.

14.

The Himachal Pradesh Government vide notification Ex. PW-1/N dated 30th

August, 1997 revised the pay scales of skilled and semi skilled posts including work charge in the

scales of Rs. 400-600 and Rs. 400-660 under various departments of Himachal Pradesh and granted

pay scale of Rs. 950-1800 with initial start of Rs. 1,000/- with effect from 1.1.1986 to Carpenter

Grade-II and Grade-III only per annexure and such categories only were designated as Junior

Technicians.

15.

The aforesaid notification dated 6.4.1995 makes it evident that carpenters were re-

designated as Carpenter Grade-IV, Grade-III, Grade-II and Grade-I which categories were earlier

designated as Carpenter Grade-1, Grade-II, Grade-III and Grade-IV and the pre revised and revised

scales of these posts per notification Ex. RW-2/C dated 14.1.1981 were as follows:-

Grade

Pay Scales

Revised pay scales

80-120

325-495

100-160

400-600

III

180-260

400-660

140-300

450-560

16.

The petitioner workmen were daily wagers and after conferment of work charge

status they were designated as carpenters Grade-IV. The scale of Carpenter Grade-IV was initially

Rs. 80-120 which was revised to Rs. 325-495 and was further revised to Rs. 800-1455 with effect

from 1.1.1986 after corrigendum dated 12.2.1997. The scales were revised to Rs. 2720-4260 with

effect from 1st January, 1996. The performance of semi skilled work cannot be equated with the

skilled work to hold that there is any discrimination in grant of scales. The petitioner

workmen/workmen were not carpenters Grade-II and Grade-III before and after clubbing,

therefore, the petitioner workmen/workmen were not entitled to the scale of Rs. 950-1800 with

initial start of Rs. 1,000/- with effect from 1.1.1986 and revised scale of Rs. 3120-5160 with effect

from 1.1.1996. Consequently, the petitioner workmen are also not entitled to be designated as

Junior Technicians. The issue is answered against the petitioner workmen.

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Issue No. 2 :

17.

The petitioner workmen as held on findings on issue no.1 are not entitled to the scale

of Rs. 950-1800 with initial start of Rs. 1,000/- with effect from 1.1.1986 and revised scale Rs.

3120-5160 with effect from 1.1.1996. Consequently, the petitioner workmen are also not entitled to

be designated as Junior Technicians. The issue is answered against the petitioner workmen.

Issue No. 3 :

18.

The reference has been made by the government for adjudication of the dispute

between the parties. The reference as such is maintainable. This issue is answered in favour of the

petitioner.

Relief.

In the result, the reference is answered in negative. Consequently, petitioner workmen are

not entitled to the scale of Rs. 950-1800 with initial start of Rs. 1,000/- with effect from 1.1.1986

and revised scale of Rs. 3120-5160 with effect from 1.1.1996. Let a copy of this award be sent to

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

to records.

Announced in the open court today on this 11th day of November, 2011.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

_________

IN THE COURT OF D.K SHARMA, PRESIDING JUDGE, INDUSTRIAL TRIBUNALCUM-

LABOUR COURT, SHIMLA, (H.P)

Ref No. 24 of 2008.

Instituted on. 22.4.2008.

Decided on 11.11.2011.

Rajinder Kumar S/o Shri Kishan Chand Lohakhar, P.O Guwardu, Tehsil and District

Hamirpur, H.P. …Petitioner.

Vs.

The Principal, Green Hills Engineering College, Gandhi gram, Nahan Road, Kumarhatti,

District Solan, H.P. . . Respondent.

Reference under section 10 Industrial Disputes Act, 1947.

For petitioner :

Shri J.C Bhardwaj, AR.

For respondent :

Shri Vishal Panwar, Advocate.

AWARD

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

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“Whether the termination of service of workman Shri Rajinder Kumar (Lab. Assistant)

by the Principal, Green Hills Engineering College, Gandhi Gram, Nahan Road,

Kumarhatti, District Solan, w.e.f. 9/2/2007 is legal and justified? If not, what relief of

service benefits and amount of compensation, the above aggrieved workman is entitled

to?”

It is averred that the petitioner was engaged as a Lab. Assistant in Physics Lab. by

the respondent on 31/7/2003 on pay of Rs. 4500-150-5100/- plus allowances. The appointment of

the petitioner has been approved by the statutory authorities including H.P University. The

petitioner has completed 240 days in a calendar year for the application of section 25F of the

Industrial Disputes Act, 1947. The services of the petitioner were dispensed with effect from

8/2/2006 without complying the provisions of Industrial Disputes Act, 1947. It is also alleged that

while dispensing with the services of the petitioner the principle of first come last go has not been

followed.

The claim is opposed by the respondent on legal objections regarding

maintainability and competency. On merits, it is stated that the appointment of the petitioner was

not approved by any statutory authority. The petitioner during the year, 2004 did not complete the

job assigned to him, that is, note books were not completed and the petitioner did not display roll

numbers on board and on the sheets. The petitioner later admitted his fault and undertook not to

repeat such mistake in future. The petitioner was found absent from duties by the Chairman and the

petitioner on his own on reaching office, put his signatures on the cross showing him to be present.

The petitioner in the reply to show cause notice dated 2/12/2005 took contrary and false stand and

misbehaved with the Chairman. The services of the petitioner were dispensed after enquiry.

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

reaffirmed the averments of the petition.

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

Whether the termination of services of the petitioner by the respondent with effect

from 9/2/2007 without complying the provisions of I.D Act, 1947 is illegal 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 claim petition is not maintainable as alleged? . . OPR

Relief.

For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as

under:

Issue No.1

Yes.

Issue No. 2

Entitled to reinstatement with seniority and continuity in

service but without back wages.

Issue No.3

No.

Relief.

Reference answered in affirmative per operative part of

award.

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Reasons for findings

Issue No.1 :

The testimony of the petitioner coupled with Ex. PA copy of engagement letter

dated 31/7/2003 makes out that the petitioner continued to work as Lab. Assistant with the

respondent during the period from 31/7/2003 to 8/2/2006, when he was retrenched. The petitioner

worked for 240 days in a calendar year preceding his retrenchment. Section 25F has application in

the present case.

The notice dated 8/2/2006 Ex. PB retrenching the services of the petitioner with

effect from 9/2/2006 is not one month’s notice as envisaged under section 25F of the Industrial

Disputes Act, 1947 nor it was accompanied by retrenchment compensation, therefore, the

retrenchment of the petitioner is bad entitling him to reinstatement.

The respondents demonstrably have not conducted enquiry against the petitioner

before dispensing with his services. The testimony of Shri S.S Sen (RW-1) Principal, respondent

college that no presenting officer was appointed substantiates this fact. Therefore, the explanation

Ex. PC dated 29/11/2005 which was also refuted by the petitioner vide letter Ex. PD dated

30/12/2005 is inconsequential. The services of the petitioner have been terminated without

conducting enquiry and issuance of valid notice.

10.

Thus, it is evident that the petitioner had completed continuous service of 240 days

in a calendar year. The termination of the services of the petitioner by the respondent, without valid

notice and payment of compensation is in violation of the provisions of section 25-F of the

Industrial Disputes Act. This issue is answered in favour of the petitioner.

Issue No. 2 :

11.

The termination of services of the petitioner by the respondent as held in findings on

issue no.1 is illegal and unjustified and the petitioner is entitled to reinstatement in service

alongwith seniority and continuity. The petitioner is not entitled to back wages as he has not placed

any material on record to substantiate that he was not gainfully employed. This issue is partly

answered in favour of the petitioner.

Issue No. 3 :

12.

The Educational Institution in its institutional form is an industry. There are number

of other activities of the University Administration, demonstrably industrial which are severable

although ancillary to the main cultural enterprises such as engaging drivers, conductors, cleaners

and technicians. Reliance may be placed on decision reported in (1978) 2 SCC 213 Banglore

Water Supply and Sewerage Board Vs. A. Rajappa and others. Para 96 is reproduced as

under:

“There are a number of other activities of the University Administration,

demonstrably industrial which are severable although ancillary to the main cultural

enterprise. For instance, a university may have a large printing press as a separate but

considerable establishment. It may have a large fleet of transport buses with an army

of running staff. It may have a tremendous administrative strength of officers and

clerical cadres. It may have karamcharis of various hues. As the Corporation of

Nagpur has effectively ruled, these operations, viewed in severally or collectively, may

be treated as industry. It would be strange, indeed, if a university has 50 transport

buses, hiring drivers, conductors, cleaners and workshop technicians. How are they to

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be denied the benefits of the Act, especially when their work is separable from

academic teaching, merely because the buses are owned by the same corporate

personality ? We find, with all defence, little force in this process of nullification of the

industrial character of the University's multi-form operations.”

13.

The ratio of the aforesaid decision makes it evident that the petitioner who was

working as a Lab. Assistant with the respondent college is a workman within the meaning of

section 2 (s) of the Industrial Disputes Act, 1947. The reference has been validly made and this

tribunal has jurisdiction to try and decide this reference. The issue is answered against the

respondent.

Relief.

In the result, the reference is answered in affirmative. Consequently, petitioner is held

entitled to reinstatement in service with seniority and continuity with effect from the date of his

termination but without back wages. Let a copy of this award be sent to the appropriate government

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

Announced in the open court today on this 11th day of November, 2011.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

________

Ref.114/2010

Sh Ashok Kumar V/s Federal Mogul, Parwanoo.

15.11.2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate for the respondent.

The reference made vide notification datedOctober,2010 by the Labour Copmmissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per order

dated 22nd September, 2011 passed in CWP nos.8022,8023,8024,8026,8030,8031,8033,8035,8049 and

8099 of 20101 in case titled as federal Mogul Bearing India Ltd. Versus State of H.P and others. The

reference as such doesnot survive .Let a copy of this order be sent to the appropriate government for

information. The record of this case file be consigned to records.

Announced.

15th November,2011.

By order,

Sd/-

Presiding Judge,

Labour Court, Shimla.

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Ref. 131/2010

Sh Manga Ram V/s Federal Mogul, Parwanoo.

15.11.2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate for the respondent.

The reference made vide notification datedOctober,2010 by the Labour Copmmissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per order

dated 22nd September, 2011 passed in CWP nos.8022,8023,8024,8026,8030,8031,8033,8035,8049 and

8099 of 20101 in case titled as federal Mogul Bearing India Ltd. Versus State of H.P and others. The

reference as such doesnot survive .Let a copy of this order be sent to the appropriate government for

information. The record of this case file be consigned to records.

Announced.

15th November,2011

By order,

Sd/-

Presiding Judge,

Labour Court, Shimla.

________

Ref.132/2010

Sh Gursewak Singh V/s Federal Mogul ,Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court

per order dated 22ndSeptember,2011passed in CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive.Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011

By order,

Sd/-

Presiding Judge

Labour Court,Shimla.

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Ref.133/2010

Sh Devinder Kumar V/s Federal Mogul,Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order

dated

22ndSeptember,2011passed

CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive. Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011 .

By order,

Sd/-

Presiding Judge,

Labour Court,Shimla.

________

Ref.134/2010

Sh Dev Raj V/s Federal Mogul .Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order

dated

22ndSeptember,2011passed

CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive. Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011.

By order,

Sd.-

Presiding Judge,

Labour Court, Shimla.

________

Ref.135/2010

Sh Gurmukh Singh V/s Federal Mogul, Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

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The reference made vide notification dated October,2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order

dated

22ndSeptember,2011passed

CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive.Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011.

By order,

Sd/-

Presiding Judge,

Labour Court,Shimla.

_______

Ref.136/2010

Sh Sushil Kumar V/s federal Mogul. Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October,2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order dated 22ndSeptember, 2011passed in CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive.Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011.

By order,

Sd/-

Presiding Judge,

Labour Court,Shimla.

________

Ref.137/2010

Smt. Neelam Sharma V/s Federal Mogul, Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

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order

dated

22ndSeptember,2011passed

CWPNos.8022.8023.8024,8026,8030,8031,

8033,8035,8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State

of H.P. and others. The reference as such does not survive. Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011.

By order,

Sd.-

Presiding Judge,

Labour Court,Shimla.

_________

Ref.138/2010

Sh. Hem Raj V/s Federal Mogul, Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order dated 22ndSeptember, 2011passed in CWPNos. 8022, 8023, 8024, 8026, 8030, 8031, 8033,

8035, 8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State of

H.P. and others. The reference as such does not survive. Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

Announced:

15.11.2011.

By order,

Sd/-

Presiding Judge,

Labour Court,Shimla.

__________

Ref.139/2010

Smt Mana Chakerborty V/s Federal Mogul, Parwanoo.

15/11/2011:-

Present:- Sh R.K.Khidtta, Advocate for the petitioner.

Sh Rahul Mahajan, Advocate, for the respondent.

The reference made vide notification dated October, 2010 by the Labour Commissioner for

adjudication of the demands of the petitioner has been quashed by the Hon’ble High Court per

order dated 22^nd September, 2011passed in CWPNos. 8022, 8023, 8024, 8026, 8030, 8031, 8033,

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8035, 8049 and 8099 of 2010 in case titled as Federal Mogul Bearing India Ltd Versus State of

H.P. and others. The reference as such does not survive. Let a copy of this order be sent to the

appropriate government for information. The record of this case file be consigned to records.

By order,

Sd/-

Presiding Judge,

__________

Labour Court,Shimla IN THE COURT OF D.K SHARMA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNALCUM-LABOUR COURT, SHIMLA, (H.P)

Ref No130 of 2007.

Instituted on. 12.10.2007.

Decided on. 1.11.2011.

Rewa Dass S/o Shri Nokh Ram R/o Village Bag Pargna Saraj Tehsil Sunni, District Shimla,

H.P.

. .Petitioner.

Vs.

The Assistant Manager, H.P State Forest Corporation, Nigam Vihar Shimla-2.

…Respondent.

Reference under section 10 Industrial Disputes Act, 1947.

For petitioner :

Shri J.R Sharma, Advocate.

For respondent :

Shri Balram Sharma, Advocate.

AWARD

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

“Whether the termination of services of Shri Rewa Dass S/o Shri Nokh Ram

workman by the Assistant Manager, HP State Forest Corporation, Nigam Vihar,

Shimla 171002, w.e.f. 15/11/1996 without complying the provisions of the

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

benefits the above aggrieved workman is entitled to?”

It is pleaded that the petitioner was engaged as daily waged beldar with the

respondent at Malgi Depot. in March, 1987. The petitioner completed 240 days in a calendar year.

The allegation of theft of resin tins leveled against the petitioner by the respondent was false and

FIR was cancelled by the JMIC Shimla-II. The services of the petitioner were terminated illegally

with effect from 14.11.1996 in violation of the provisions of Industrial Disputes Act, 1947. The

principles of last come first go was not followed. The application filed by the petitioner before the

Ld. Administrative Tribunal was dismissed. The review petitions were also dismissed. The writ

filed in the Hon’ble High Court was disposed of with the observation that if law permits, petitioner

will be free to approach appropriate forum in accordance with law.

The claim is opposed by the respondent on legal objections regarding

maintainability, barred by section 11 Code of Civil Procedure, locus standi, non-joinder of

necessary parties, limitation and estoppel. On merits, it is stated that when the case of theft of resin

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tins came to the notice of the respondent, proper enquiry was conducted by the Divisional Manager.

The reply of the petitioner to show cause notice was not found satisfactory and the services of the

petitioner were terminated after adopting prescribed procedure. The order was upheld by the Ld.

State Administrative Tribunal and two review petitions filed by the petitioner were dismissed by

the Ld. State Administrative Tribunal and the order was also upheld by the Hon’ble High Court.

The order of acquittal passed by JMIC Shimla-II was not binding upon the respondent.

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

reaffirmed the averments of the petition.

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

Whether the termination of services of Shri Rewa Dass petitioner by the Assistant

Manager HP, SFC Nigam Vihar Shimla-2 w.e.f. 15/11/1996 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 claim is not maintainable as alleged? . .OPR

Whether the petition is time barred? . . OPR

Whether the petitioner has no locus standi nor enforceable cause of action to file this

petition? . .OPR

Whether the petitioner is estopped from filing the petition by his own acts, deeds,

conduct, admissions, commissions, omission and acquiesces? . .OPR

Whether the petition is bad for nonjoinder of necessary parties? . .OPR

Relief.

For the reasons to be recorded hereinafter, my findings on the aforesaid issues are as

under:

Issue No. 1

Yes.

Issue No. 2

Entitled to reinstatement with seniority and continuity in

service but without back wages.

Issue No. 3

No.

Issue No. 4

No.

Issue No. 5

No.

Issue No. 6

No.

Issue No. 7

No.

Relief.

Reference answered in affirmative per operative part of

award.

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Reasons for findings

Issue No. 1:

It is made out from the testimony of the petitioner PW-1 that he worked during the

period from 1987 to 14/11/1996. The petitioner, admittedly, had completed 240 days in twelve

months preceding his termination, therefore, the provisions of section 25-F of the Industrial

disputes Act would have application. The provisions of section 25-F of the Industrial Disputes Act,

1947 are as under:

“Section 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.”

On perusal of the provisions of aforesaid section, it is evident that where the worker

has been in continuous service for not less then one year, one month’s notice in writing indicating

the reasons for retrenchment or wages for the period of notice has to be paid. Apart from it, he has

also be paid compensation which shall be equivalent to fifteen days' average pay for every

completed year of continuous service. However, it is apparent from mark R-8, copy of order dated

14.11.1996 the findings recorded by the Divisional Manager vide letter mark R-3 dated 20.8.1996

were communicated to the petitioner that there was theft of resin tins in connivance with the

petitioner. The said finding is redundant inview of the subsequent report mark A dated 18/9/1996

by the Deputy Ranger that there was no short fall in extraction of lot no. 1/96 and 2/96. The FIR

about commission of theft of resin tin was also cancelled by the Ld. JMIC Court No.2, Shimla per

order dated 29/6/2001, copy of order is Ex. PA. So, it is established that there was no theft of resin

and the notice issued against the petitioner on the basis of preliminary conclusion stands vitiated.

This makes it evident that the reason mentioned for dispensing with the services of the petitioner

was not valid.

It is also significant that the petitioner had been working with the respondents during

the years 1987 to 1996. The petitioner had completed 240 days in a calendar year as mentioned in

para 2 of the petition which fact remains unrebutted. The respondents, in such a situation, were also

required to comply with the provisions of section 25-F and pay retrenchment compensation which

was to be equivalent to fifteen days' average pay for every completed year of continuous service.

The amount has, admittedly, not been paid to the petitioner. The retrenchment of the petitioner for

such reason is also illegal and void.

10.

The Hon’ble High Court in the writ petition CWP No. 995 of 2004 dated 22/12/2004

filed by the petitioner challenging the order of Ld. Administrative Tribunal has observed as under:

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“After having heard learned counsel for the parties present, we feel that no exception can

be taken to the orders passed by the Tribunal vide Annexure PE, PG and PJ in the

peculiar facts and circumstances of this case, which call for no interference. Dismissed

summarily. It is however, clarified that if law permits, petitioner will be free to approach

appropriate forum in accordance with law. However, we are not expressing any opinion

on this aspect of the case.”

11.

The Hon’ble High Court had given the opportunity to the petitioner to approach the

appropriate forum that is this Tribunal. Reliance may also be placed on decision reported in 2002

(3) SLC 423 case titled as HP Agro Industries Corporation Ltd., and Ors. Vs. Raj Kumar and

Anr. Relevant paras 78 to 80 are reproduced as under:

“78.

Keeping in mind the relevant provisions of the I D Act as well as other

corresponding laws for the time being in force and the A T Act, there is no

doubt in our minds that the ambit and scope as also object of both the Acts are

district, separate and deferent. Independent forums, therefore, have been

constituted by the competent Legislature and it is obligatory on the aggrieved

person to approach an appropriate forum constituted and established under

the relevant law. It is also clear to us that in Premier Automobiles and

Rajasthan State Road Transport Corporation, the Supreme Court laid down in

no uncertain terms that where rights or obligations are created by the I D Act,

the only remedy is to approach the forum created by the Act. The argument

that the ratio in those cases would not apply to Administrative Tribunals

inasmuch as the Supreme Court had held that civil Court had no jurisdiction

and thus jurisdiction of only Civil Court is ousted did not impress us. The

Supreme Court had so held as the question had arisen regarding the

jurisdiction of Industrial Tribunal/Labour Court vis-à-vis Civil Court. That,

however, does not mean that the law laid down in those cases has limited

applications and it would not apply to Administrative Tribunals or Authorities

other than Civil Court. Regarding the judgment in the way in which it is sought

to be suggested by the learned counsel for the respondents would make the

principles formulated by the Apex Court nugatory, otiose and ineffective. The

words “only remedy” used by their Lordships of the Supreme Court will also

become ineffective and redundant, which is not permissible. In our considered

view, proper reading of the judgments of Supreme Court and ratio laid down

therein would mean and only mean that where the rights and obligations are

created by that Act alone. Any other interpretation, in our openio, would be

inconsistent with and contrary to the law laid down in those cases. We are,

therefore, unable to read the decisions of the Supreme Court in any other

manner.”

“79. Moreover, the legal position has also been substantially changed after the

decision in L. Chandra, Between Sampath Kumar and L. Chandra Kumar,

administrative Tribunal was held to be an “effective alternative institutional

mechanism fkor judicial review” and a real substitute of all courts including

the high court de jure as well as de facto. That is not the position now. Sampath

Kumar was overruled by L. Chandra Kumar and is no longer good law. As per

settled legal position, an Administrative Tribunal constituted under the A T

Act has retained its character as a Tribunal like any other Tribunal constituted

under a statute and has to exercise it jurisdiction under the Act. It has no

plenary or unlimited jurisdiction. It cannot travel beyond the four corners of

the A T Act. In our opinion, therefore, it has no jurisdiction to enquire into the

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grievances made by an aggrieved party in the matters covered by the I D Act or

any other corresponding law for the time being in force.”

“80. For the forgoing reasons, in our opinion, the Administrative Tribunal

constituted and established under the Administrative Tribunals act, 1985 has

no jurisdiction to entertain, deal with and decide an application for the

protection or enforcement of the rights created or liabilities imposed under the

Industrial Disputes Act, 1947 or any other law for the time being in force and

the only remedy available to the aggrieved party is to approach Industrial

Tribunal/Labour Court or any Authority constituted and/or established under

the relevant statute. The order passed by Administrative Tribunal either under

the provisions of the I D Act or any other law for the time being in force must

necessarily be held to be null and void and without jurisdiction.”

12.

The ratio of the aforesaid decision makes it clear that Labour Court solely is vested

with the jurisdiction to try such disputes. This conclusion is also strengthened from the fact that

Hon’ble High Court has afforded opportunity to the petitioner to approach appropriate forum which

makes it clear that the petitioner was permitted to raise dispute about his illegal termination before

this Tribunal. The order passed by the Ld. Administrative Tribunal, in such circumstances, will not

oust the jurisdiction of this Court to answer this reference. This Tribunal as such has jurisdiction to

try and decide this reference and the termination of services of the petitioner is in violation of the

provisions of section 25F of the Industrial disputes Act, 1947. The issue is answered in favour of

the petitioner.

Issue No. 2:

13.

The termination of services of the petitioner by the respondent is illegal and

unjustified and the petitioner is entitled to reinstatement in service alongwith seniority and

continuity. The petitioner is not entitled to back wages as he has not placed any material on record

to substantiate that he was not gainfully employed. This issue is partly answered in favour of the

petitioner.

Issue No. 3 :

14.

The petitioner as held on findings on issue no.1 is entitled to reinstatement. The

claim filed by him as such is maintainable. This issue is answered in favour of the petitioner.

Issue No. 4 :

15.

It could not be explained by the respondents as to how this petition is time barred.

The Hon’ble Supreme Court in (1999) 6 SCC 82, Ajayab Singh Vs. Sirhind Co-operative

Marketing –cum- processing Service Society Limited and Another have held:

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the

proceeding under the ID Act. The relief under the ID Act cannot be denied merely on the

ground of delay. The plea of delay if raised by the employer is required to be proved as a

matter of fact by showing the real prejudice and not as a merely hypothetical defence. No

reference to the Labour Court can be generally questioned on the ground of delay alone”

16.

Thus, it is evident that this petition is not time barred. The issue is answered against

the respondent.

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Issue No. 5 :

17.

The petitioner was engaged by the respondent corporation and completed 240 days

in a calendar year and his services were terminated by the respondent in violation of the provisions

of the Industrial Disputes Act, 1947. The petitioner, in such circumstances, has locus standi and

enforceable cause of action to maintain this petition. This issue is answered against the respondent.

Issue No. 6 :

18.

The respondent has not brought any evidence to substantiate as to how the petitioner

is estopped from filing the petition by his own acts, deeds, conduct, admissions, commissions,

omission and acquiesces. This issue is answered against the respondent.

Issue No.7 :

19.

The respondent has failed to prove on record as to how this petition is bad for

nonjoinder of necessary parties. The issue is answered against the respondent.

Relief :

In the result, the reference is answered in affirmative. Consequently, petitioner is held

entitled to reinstatement in service with seniority and continuity with effect from the date of his

termination but without back wages. Let a copy of this award be sent to the appropriate government

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

Announced in the open court today on this.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

________

Sh Roshan Lal V/s M/s Mega Packing B/Wala. Ref.93/2010

5/11/2011.

Present: Shri Niranjan Verma, Advocate for petitioner.

Respondent already exparte.

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

“Whether the termination of services of Shri Roshan Lal S/o Shri Jeet Ram by the

management of M/s Mega Packaging, Haripur Road, Barotiwala, Tehsil Baddi, District

Solan, H.P. w.e.f. 25/9/2009 without following the provisions of the Industrial Disputes

Act, 1947 is proper and justified? If not, what relief of consequential service benefits the

above worker is entitled to from the above employer?”

The case of the petitioner appears to be that the respondent engaged him for work. The

services of the petitioner were dispensed with effect from 25/9/2009 per reference. The demand

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notice was raised by the petitioner and the reference came to be made. The petitioner to fortify his

case that termination of his services is illegal has not filed any claim and the respondent is exparte.

The contention of the petitioner remains unsubstantiated and as such the petitioner has failed to

prove that his services were illegally terminated by the respondent factory. So, reference is ordered

to be answered in negative. Let a copy of this order be sent to the appropriate government for

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

Announced:

5th November, 2011.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour-Court, Shimla.

________

IN THE COURT OF D.K SHARMA, P JUDGE, INDUSTRIAL TRIBUNALCUM-LABOUR

COURT, SHIMLA, (H.P)

Ref No 143 of 2007.

Instituted on. 12.11.2007.

Decided on 1.11.2011

Uma Dass S/o Shri Budhi Singh R/o Village Bagri, Tehsil Sunni, District Shimla, H. P.

.. Petitioner.

Vs.

The Assistant Manager, H.P State Forest Corporation, Nigam Vihar Shimla-2.

. . Respondent.

Reference under section 10 Industrial Disputes Act, 1947.

For petitioner :

Shri J.R Sharma, Advocate.

For respondent :

Shri Balram Sharma, Advocate.

AWARD

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

“Whether the termination of services of Shri Uma Dass S/o Shri Budhi Singh workman

by the Assistant Manager, HP State Forest Corporation, Nigam Vihar, Shimla 171002,

w.e.f. 14/11/1996 without complying the provisions of the Industrial Disputes Act, 1947 is

proper and justified? If not, what relief of service benefits the above aggrieved workman

is entitled to?”

It is averred that the petitioner was engaged as daily waged beldar with the

respondent at Malgi Depot. in March, 1992. The petitioner had completed 240 days in a calendar

year. The allegation of theft of resin tin leveled against the petitioner by the respondent was false

and FIR was cancelled by the JMIC Shimla-II. The services of the petitioner were terminated

illegally with effect from 14/11/1996 in violation of the provisions of Industrial Disputes Act, 1947.

The principles of last come first go was also not followed. The application filed by the petitioner

before the Ld. Administrative Tribunal was dismissed. The review petitions were also dismissed.

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The writ filed in the Hon’ble High Court was disposed of with the observation that if law permits,

petitioner will be free to approach appropriate forum in accordance with law.