jkti=] fgekpy izns'k

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

f”keyk] cq/kokj 17 vDrwcj] 2012@25 vkf'ou] 1934

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

NOTIFICATION

Shimla-02, the 05^th October, 2012

No. HHC/Admn.3 (336)/92-I.—05 days earned leave on and w.e.f. 08-10-2012 to 12-10-

2012 with permission to prefix Sunday falling on 07-10-2012 and suffix Second Saturday and

Sunday falling on 13-10-2012 & 14-10-2012 is hereby sanctioned in favour of Shri Prem Chand

Verma, Secretary of this Registry.

154&jkti=@2012&17&10&2012

¼4297½

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Certified that Shri Prem Chand Verma is likely to join the same post and at the same station

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

Certified that Shri Prem Chand Verma would have continued to officiate the same post of

Secretary, but for his proceeding on leave.

By order,

Registrar General.

&&&&&&&&&

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2 , 2012

No. Shram (A) 7-1/2005 (Award).—In exercise of the powers vested in her 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:—

By order,

Sd/-

ACS ( Labour & Employment).

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App. 28/2011

09.08.2012

Sh Santosh Kumar V/s M/s Nickuny EDM wires& consumables Ltd Baddi

Present:

Shri A.K Sharma, AR for petitioner.

Shri P.S Chauhan, AR for respondent.

Today, Shri A.K Sharma on behalf of the petitioner has disclosed that parties have entered

into a settlement. He filed written settlement Ex. PA revealing that the management/respondent is

agreed to pay a sum of Rs. 15,000/- (Rs. Fifteen Thousand only) as full & final payment to the

petitioner. Statement of Shri A.K Sharma, AR for petitioner is recorded.

In view of said settlement, petitioner agreed not to press his claim. Hence, in the light of

aforesaid compromise, this petition stands compromised. The statement of Shri A.K Sharma, AR as

well as Ex. PA shall form part of this award and the award is accordingly passed. 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.

9/8/2012.

Sd/-

Presiding Judge,

Labour Court, Shimla.

_________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

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

Ref No. 78 of 2009.

Instituted on. 29.9.2009.

Decided on 28.8.2012.

Balak Ram S/o Shri Surat Ram R/o Village Dilman, P.O Kunji, Tehsil Pachhad, District

Sirmour, H.P.

…Petitioner.

Vs.

The Registrar, Dr. Y.S Parmar University of Horticulture and Forestry, Nauni, District

Solan, HP.

…Respondent.

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

For petitioner :

Shri J. C Bhardwaj, AR.

For respondent :

Shri D.K Thakur, Advocate.

AWARD

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

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“Whether the termination of services of Shri Balak Ram S/o Shri Surat Ram workman by

the Registrar, Dr. Y.S Parmar University of Horticulture and Forestry, Nauni, District

Solan, HP w.e.f. 1.4.2000 without complying the provisions of Industrial Disputes Act,

1947 as alleged by the workman is proper and justified? If not, what relief of back

wages, seniority and amount of compensation the above aggrieved workman is entitled

to? ”

The petitioner has filed the claim stating that he was engaged by the Respondent

University for the first time on 19.8.1986 and remained in continuous service when he was illegally

terminated on 1.4.2000. The respondent did not issue any notice before terminating the services of

the petitioner. No opportunity was given to the petitioner to defend himself. The petitioner worked

more than 240 days in a calendar year prior to his termination on 1.4.2000. So, he was entitled for

protection under the provisions of Industrial Disputes Act, 1947. Hence, he prayed to set aside the

illegal termination order dated 1.4.2000 and to reinstate him with full back wages, seniority and

other service benefits.

In reply, the respondent took preliminary objections as to the petitioner being a

contractual labourer and non entitlement of petitioner to get the relief of section 25-F of Industrial

Disputes Act, 1947. On merits, the respondent stated that the petitioner worked during the years of

1986-87-88 and 1989 as contractual labourer and thereafter, again worked in the years of 1990-91

and 1993. The petitioner did not complete 240 days in 1986, 1992 and 1994, so, he was not entitled

for the benefits of sections 25-B and 25-F of Industrial Disputes Act, 1947. It was further stated

that the petitioner abandoned the work on his own. The respondent further stated that vide letter

dated 25.7.2002, the petitioner was asked to come for contractual appointment but he did not turn

up. It was further stated that w.e.f. 1.1.2002, the appointment of contractual labourer on muster roll

basis was banned by the Respondent University, so, claim petition of petitioner is not maintainable.

Consequently, respondent prayed for the dismissal of the claim petition.

Petitioner filed rejoinder wherein he denied the averments made in the reply by the

respondents and further reasserted the averments already made in the claim petition.

On the pleadings of the parties, the following issues are framed.

Whether the termination of the services of the petitioner w.e.f. 1.4.2000 by

the respondent is in violation of the provisions of the Industrial Disputes Act,

1947?

…OPP

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

to?

…OPP

Whether the petitioner was engaged as contractual labourer on fixed salary

under the contractual labour system under the government funded scheme?

…OPR

Whether this Court has no jurisdiction to try and decide this petition?

…OPR

Relief.

The aforesaid issues were read over and explained to both the parties. No other issue

was pressed and claimed. Evidence of both the parties on the aforesaid issues were recorded.

I have heard both the parties and gone through the record carefully.

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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.

Relief.

Reference answered in negative and the relief is granted to the

petitioner per operative part of award.

Reasons for finding

Issue No.1& 3.

Both these issues are interlinked and can be disposed by a single finding.

10.

From the pleadings of the parties, it is clear that the petitioner was engaged by the

respondent university in the year, 1986. As per respondent, the petitioner was engaged on

contractual basis. On behalf of respondent, RW-1 Shri Liaquat Ali was examined and he has stated

that he was authorized to depose in this case. His statement is revealing that the petitioner was

engaged for the first time in 1986 on contractual basis but the respondent did not produce any

contract between the parties to show that the petitioner was engaged on contractual basis.

Moreover, in his cross examination, RW-1 Shri Liaquat Ali has stated that petitioner was engaged

on 19.8.1986 on daily wages basis. So, it stands established that the petitioner was a daily wager

workman under the respondent university.

11.

The petitioner Balak Ram stepped into the witness box as PW-1 and field his

affidavit which is revealing that he joined the respondent university on 19.8.1986 and worked till

1.4.2000 continuously when his services were illegally terminated. Ex. PA is the termination letter

of the petitioner issued by the Deputy Comptroller of respondent university revealing that the

services of petitioner Balak Ram were disengaged w.e.f. 1.4.2000. This letter is further revealing

that in the year of 1999, petitioner had worked for 319 days and from Jan., 2000 to March, 2000, he

had worked for 89 days. Petitioner also produced in evidence mandays chart annexure P-7. From

the careful perusal of Ex. PA and annexure P-7, it is clear that prior to 1.4.2000, the petitioner had

completed 240 days in a calendar year. So, the petitioner was entitled for the protection of section

25-F of Industrial Disputes Act, 1947, under which it was obligatory upon the respondent

university to issue a notice of one month before terminating the services of petitioner or to pay one

month’s wages along-with compensation to the petitioner. In this case, the compliance of said

mandatory provisions of law has not been made by the respondent university. Consequently, the

termination of petitioner w.e.f. 1.4.2000 is illegal and unjustified. Consequently, the termination

order Ex. PA is hereby set aside being illegal, null and void.

12.

On behalf of respondent a plea has been raised that petitioner himself has abandoned

the job. But Ex. PA is revealing that the services of petitioner were disengaged w.e.f. 1.4.2000. So,

there is no question of any abandonment by the petitioner. Moreover, RW-1 Shri Liaquat Ali has

stated that in the year of 2000, no notice was issued to the petitioner asking him to come back and

join his duties.

13.

On behalf of respondent, reliance was made on letter annexure P-6 dated 25.7.2002

vide which the petitioner was asked to join the job on contractual basis on 31.7.2002. There is

nothing on record to show that said letter was received by the petitioner. But for the reasons

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discussed hereinabove, the petitioner was daily wager workman/employee under the respondent

university, therefore, there was no occasion for the petitioner to join the job on contractual basis in

2002, especially when, his services as daily wager were illegally terminated on 1.4.2000. This,

letter annexure P-6 would not be helpful to the respondent.

14.

Accordingly, for the aforesaid reasons issue no.1 & 3 are decided against the

respondent.

Issue No. 2.

15.

For the reasons recorded hereinabove while deciding issue no.1 & 3, the petitioner is

entitled to reinstatement w.e.f. 1.4.2000 with seniority and continuity in service. However, keeping

in view the facts and circumstances of the case, the petitioner is not entitled for back wages.

Accordingly, this issue is decided in favour of petitioner.

Issue No.4

16.

The present reference has been received from the appropriate government for

adjudication under section 10 of the Industrial Disputes Act, 1947 and as such this Court has got

jurisdiction to try and decide the reference as well as claim petition filed by the petitioner. Hence,

this issue is decided against the respondent.

Relief.

For the reasons recorded hereinafter, the claim of the petitioner is allowed and the reference

is answered in negative as the services of the petitioner were wrongly and illegally terminated by

the respondent without complying with the provisions of Industrial Disputes Act, 1947.

Consequently, petitioner is held entitled for 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 28th day of August, 2012 in the presence of

parties counsel.

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

_________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

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

Ref. No. 15 of 2002.

Instituted on. 17.1.2002

Decided on. 31.8.2012.

Bhag Singh S/o Shri Pritam Singh R/o Village and P.O Panjehra, Tehsil Nalagarh, District

Solan, H.P.

…Petitioner.

Vs.

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M/s Shivalik Hatcheries Unit-II, VPO Panjehra, Tehsil Nalagarh, District Solan, H.P

through its Managing Director.

…Respondent.

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

For petitioner :

Shri J.C Bhardwaj , AR.

For respondent :

Shri Rajeev Shasrma, Advocate

AWARD

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

“Whether the enquiry which caused the termination of the services of Shri Bhag Singh

S/o Shri Pritam Singh w.e.f. 20.10.2000 by the Managing Director, M/s Shivalik

Hatcheries Unit-II, Village and Post Office Panjehra Tehsil Nalagarh, District Solan,

H.P is fair and justified? If not, what relief of service benefits including continuity in

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

The petitioner has filed the claim stating that he was workman under the respondent

and remained as such in the employment till 20.10.2007, when his services were dismissed without

following the principles of natural justice. The petitioner challenged the termination order being

illegal and out-come of partial domestic enquiry. In fact, the petitioner was active in trade union

activities, so, the respondent was prejudiced against him. A story was fabricated against the

petitioner and there was conspiracy on behalf of management, as the result, a false criminal case

was registered against the petitioner. The defective chargesheet was served upon the petitioner.

Before domestic enquiry, the management did not supply list of witnesses as well as documents

relied upon by the management. The enquiry officer did not adopt the procedure established under

law. The entire enquiry proceedings as well as enquiry report were challenged by the petitioner

being violative of principles of natural justice. The witnesses examined by the management were

doubtful. The enquiry officer did not explain the charges properly to the petitioner, and due

opportunity to defend himself was not given to the petitioner. Before imposing extreme penalty of

dismissal, the service record of petitioner was not considered and appropriate time was not given to

him to reply the show cause notice. Hence, petitioner prayed to set aside the enquiry report and his

dismissal order and respondent be directed to reinstate the petitioner in service with seniority and

full back wages along-with other consequential service benefits.

The respondent contested the claim of petitioner by filing a reply wherein

respondent took preliminary objections as to maintainability, suppression of material facts by the

petitioner and want of legal reference. Respondent also stated that the petitioner was gainfully

employed and working with some other concern and earning handsome amount. On merits, the

respondent stated that the petitioner did not reveal the true facts. The petitioner along with other

workers was on sanctioned leave on 8.5.2000, when he along-with other workers reached the

premises of factory of respondent at 2.00 PM. There was altercation between petitioner and other

workers and the security guards. At about 4.00 PM, the petitioner and other workers without any

permission entered into the factory and gave severe beatings to the supervisory staff as well as

senior officers of the factory. Shri Faujdar Singh, Assistant Manager sustained fracture in his arm.

The petitioner along-with other workers also damaged the gate and other property of the factory

and also did not allow the injured to be taken to the hospital. On 6.6.2000, at 6.00 PM, the

petitioner along-with other outsiders assembled outside the main gate of the factory and raised

slogans against the officers of the respondent factory and they violated the orders of Ld. Sub Judge,

1st Class, Nalagarh dated 8.5.2000 vide which the petitioners were restrained to do said unlawful

activities. The petitioner alongwith other workers pelted stones on tempo No. HP 12-2463 and

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damaged it. Due to said misconduct, the respondent management chargesheeted the petitioner

along-with other workers and a proper and fair domestic enquiry was conducted against the

petitioner wherein the charges of misconduct were proved. Proper and due opportunity was given

to the petitioner to defend himself. The petitioner cross examined the management witnesses and

after management witnesses, the petitioner was given opportunity to produce his witnesses in

defence. Before dismissing petitioner, a show cause notice was served upon him. The matter was

also reported to the Police. There was no violation of principles of natural justice during the

enquiry. The guilt of petitioner could not be ignored, hence, the punishment of dismissal was

awarded. Consequently, respondent prayed for the dismissal of the claim petition.

Petitioner filed rejoinder wherein he denied all the preliminary objections taken by

the respondent in reply and reasserted the averments already made in the petition.

On the pleadings of the parties, the following issues are framed.

Whether the enquiry which caused termination of the petitioner w.e.f

20.10.2000 by the respondent is fair and justified?

….OPR

If the issue no.1 is not proved what relief of service benefits including

continuity of service, back wages and amount of compensation is entitled to?

…OPP

Whether the claim of petitioner is not maintainable in the present form as

alleged?

…OPR

Whether the petitioner has not come to the Court with clean hands and has

concealed the material facts as alleged?

…OPR

Whether the reference is bad in law and has not been made by the competent

authority as alleged?

…OPR

Whether the petitioner is gainfully employed, if so to what effect?

…OPR

The aforesaid issues were read over and explained to both the parties. No other issue

was pressed and claimed. Evidence of both the parties on the aforesaid issues were recorded.

I have heard both the parties and gone through the record carefully.

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

under:

Issue No.1

No.

Issue No.2

Entitled to reinstatement in service with seniority and continuity but without

back wages.

Issue No.3.

No.

Issue No.4

No.

Issue No.5

No.

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Issue No.6

Yes.

Reasons for finding

Issue No.1

After hearing both the parties and going through the record, I am of the considered

opinion that the termination of petitioner w.e.f. 20.10.2000 by the respondent is not justified and

liable to set aside, for the reasons to be recorded hereinafter.

10.

From the pleadings of the parties, it is undisputed that the petitioner was a workman

engaged by the respondent and he was terminated w.e.f. 20.10.2000. As per respondent, petitioner

along-with other workmen assembled outside the factory of respondent on 8.5.2000 and 6.6.2000

respectively and damaged the gate as well as other property of respondent and also caused injuries

to the officials as well as officers of the respondent factory by beating them. One Shri Faujdar

Singh, Assist Manager sustained fracture in his arm. For the said misconduct, petitioner was

charge-sheeted and a domestic enquiry was conducted against him in which the charges against the

petitioner were proved. Consequently, a show cause notice was served upon the petitioner and

finally he was terminated w.e.f. 20.10.2000.

11.

The main question for determination before this Court is whether the domestic

enquiry conducted against the petitioner is fair and justified. Taking into account the evidence of

both the parties and other material on record, to my mind, the domestic enquiry is not sustainable

under law as the principles of natural justice have been violated.

12.

Petitioner himself stepped into the witness box as PW-1 and deposed all the facts

stated by him in the claim petition. On the other hand, respondent examined six witnesses. RW-1,

Sanjeev Sharma, Advocate is the enquiry officer, RW-2, Harbhajan Singh, the Deputy Manager of

respondent, RW-3 Milap Chand, the Assistant Manager, RW-4 Mukesh Chand, Labour Inspector,

Nalagarh, RW-5 Faujdar Singh, the then Assistant Manager who sustained injuries in the

occurrence in question and RW-6 Susheel Kumar Singh is the Assistant Manager Venkys India

Ltd., Allahabad. All these witnesses deposed that the petitioner along-with other workers entered

into the premises of respondent factory on 8.5.2000 at 4.00 PM and quarreled with staff members

and damaged the property of factory and gave beatings to the staff members with “Dandas” as the

result, Shri Faujdar Singh sustained fracture in his arm. For this occurrence, the petitioner and other

workmen were chargesheeted and domestic enquiries were conducted against them wherein they

were held guilty. The petitioner has challenged the domestic enquiry being violative of principles

of natural justice. The copy of enquiry report is Ex. R-4 which I have carefully perused. The most

important witness in this case is RW-1 Shri Sanjeev Sharma, Advocate who was appointed as an

enquiry officer and conducted the domestic enquiry vide his report Ex. R-4. In said report, it has

been mentioned that the enquiry officer apprised the delinquent (petitioner)about the procedure to

be adopted. Both the parties were apprised to produce theirrespective evidence along-with

witnesses.

13.

The cross examination of RW-1 is important wherein initially he has stated that all

the documents were supplied to the worker well before starting of the enquiry but he again stated

that some documents were supplied before enquiry whereas some were supplied before cross

examination of the witnesses. Here, the cross examination of petitioner Bhag Singh is relevant

wherein he admitted that on 9.9.2000, he received copies of Ex. P-9 to Ex. P-12 during the course

of evidence in domestic enquiry. As per record, the said documents were not earlier supplied to the

petitioner before the start of domestic enquiry and those documents were supplied during evidence.

These facts are sufficient to establish that the documents Ex. P-9 to Ex. P-12 were supplied to the

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petitioner during the course of evidence in domestic enquiry for the first time on 9.9.2000. That

means said documents were not earlier supplied to the petitioner before the start of domestic

enquiry. It established that at the time of service of chargesheet, said documents were not supplied

to the petitioner. It has caused serious prejudice to the petitioner, because, he could not defend

himself properly and effectively in the absence of documents which were relied upon and produced

in evidence by the management. I am of the opinion that a reasonable opportunity to defend the

petitioner was denied. On this ground, the enquiry report is not justified and liable to set aside.

Here, I am supported by law laid down by Hon’ble Supreme Court of India in the matter of 2002-I

LLJ 549, 2011-II LLJ 627 and 2007-I LLJ 1004.

14.

On behalf of respondent, RW-4 Shri Mukesh Chand Labour inspector, Nalagarh was

also examined who has deposed that he had received demand notice of the workers of respondent

factory dated 2.5.2000, copy of which is Ex. R-A along-with other demand notice of strike dated

2.5.2000 which is Ex. RB and the conciliation was fixed and notice of conciliation was issued

which is Ex. RC. Ex. RC is revealing that conciliation was fixed for 23.5.2000 upon the demand

notice. The cross-examination of this witness is revealing that one demand notice dated 24.4.2000

was also received and no action on this notice was taken. There is nothing in evidence what

happened to said demand notice whether that demand notice was finally decided or not. The

petitioner in para 4 of his affidavit has categorically deposed that the demand notice was not

considered and the members of the union were compelled to resort to agitation. This evidence on

record established that when the services of petitioner were terminated w.e.f. 20.10.2000, the

demand notice was pending. In the light of these facts, section 33 of Industrial Disputes Act, 1947,

is applicable which reads as under:

“Conditions of service, etc., to remain unchanged under certain circumstances during

pendency of proceedings.- (1) During the pendency of any conciliation proceeding before a

conciliation officer or a Board or of any proceeding before 2*[an arbitrator or] a Labour Court or

Tribunal or National Tribunal in respect of an industrial dispute, no employer shall—

(a)

in regard to any matter connected with the dispute, alter, to the prejudice of the

workmen concerned in such dispute, the conditions of service applicable to them

immediately before the commencement of such proceeding; or

(b)

for any misconduct connected with the dispute, discharge or punish, whether by

dismissal or otherwise, any workmen concerned in such dispute, save with the

express permission in writing of the authority before which the proceeding is

pending.

(2)

During the pendency of any such proceeding in respect of an industrial dispute, the

employer may, in accordance with the standing orders applicable to a workman concerned in such

dispute 2*[or, where there are no such standing orders, in accordance with the terms of the contract,

whether express or implied, between him and the workman],--

(a)

alter, in regard to any matter not connected with the dispute, the conditions of

service applicable to that workman immediately before the commencement of such

proceeding; or

(b)

for any misconduct not connected with the dispute, or discharge or punish, whether

by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid

wages for one month and an application has been made by the employer to the authority

before which the proceeding is pending for approval of the action taken by the employer.”

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15.

So, it was mandatory for the respondent to obtain the prior permission/approval

from the competent authority before terminating the petitioner from service. Since there is violation

of section 33 of Industrial Disputes Act, 1947, therefore, on this ground also the termination orders

of petitioner is not sustainable.

16.

On behalf of petitioner Shri J.C. Bhardwaj, AR has argued that qua occurrence in

question a criminal case was registered against the petitioner and other workers in this after

conducting trial, the Criminal Court has acquitted the petitioner, therefore, he prayed that in the

light of said acquittal order, the petitioner could not be held guilty in domestic enquiry.

17.

After due consideration, I am not in agreement with the aforesaid submission made

by Shri Bhardwaj on behalf of petitioner. To my mind, in a criminal case the mode of proof is strict

and the standard of proof is higher than that of in the domestic enquiry. In the domestic enquiry the

matter is decided on the preponderance of probabilities whereas in a criminal trial the proof is

required beyond the scope of all reasonable doubts, therefore, the nature and scope of both is

different. The judgment of criminal proceedings cannot be made a base to set aside the domestic

enquiry report. Here, Ld. Counsel for respondent rightly relied upon law laid down by Hon’ble

Supreme Court in the matter of 2012 LLR 8.

18.

Accordingly, for the aforesaid reasons, this issue is decided against the respondent.

Issue No. 2 & 6.

19.

Both these issues are interlinked and can be disposed of by a single finding. For the

reasons recorded hereinabove while discussing issue no.1, the termination order of petitioner w.e.f.

20.10.2000 by the respondent is not justified being illegal having been passed on the report of

domestic enquiry in which the principle of natural justice were violated. Consequently, the

petitioner is entitled to be reinstated in service by the respondent with seniority and continuity.

However, taking into account all facts and circumstances of the case, the petitioner is not entitled

for the back wages and compensation. It cannot be believed that for the last about ten years, the

petitioner is not gainfully employed. Although, the petitioner has denied that he is gainfully

employed during this period but the version of petitioner cannot be accepted. The respondent has

alleged that the petitioner is having agricultural income and apart from this, he has been engaged in

some other factory. Although, there is no specific evidence in this regard but I find substance in the

said plea taken by the respondent. The petitioner cannot remain without any job for a period of

about ten years.

20.

Hence, in the light of facts and circumstances of the case, the petitioner is not

entitled to back wages and compensation. He is only entitled to be reinstated in service with the

benefit of seniority and continuity in service. Hence, issue no.2 is partly decided in favour of

petitioner whereas issue no.6 is decided in favour ofrespondent.

Issue No. 3.

21.

There is nothing on record to show that the petition is not maintainable in the

present form. Accordingly, this issue is decided against the respondent.

Issue No. 4

22.

I do not find any evidence on record to suggest that the petitioner has not come to

the Court with clean hands and he has suppressed and concealed material facts. The petitioner has

categorically challenged the domestic enquiry. So, in the absence of any specific evidence on this

issue, it is also decided against the respondent.

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Issue No. 5.

23.

From the careful perusal of record, the reference has been made by the competent

authority legally and in accordance with law. Hence, this issue is also decided against the

respondent.

Relief.

For the reasons recorded hereinafter, the reference is answered in negative as the services of

the petitioner were wrongly and illegally terminated by the respondent without holding proper and

fair enquiry. As the result, the termination order of petitioner w.e.f. 20.10.2000 is hereby set aside.

Consequently, the petitioner is entitled to be reinstated in service on the same terms and conditions

with the benefits of seniority and continuity in service 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 31st day of August, 2012 in the presence of

parties counsel.

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

__________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

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

Ref. No. 361 of 2002.

Instituted on. 14.11.2002

Decided on. 29.8.2012.

Brij Lal S/o late Shri Beli Ram R/o Village Plankhwala, P.O Barotiwala, District Solan,

H.P.

…Petitioner.

Vs.

The General Manager and Vice President, M/s Pamwi Tissues Ltd., Village Jharmajri, P.O

Barotiwala, District Solan, H.P.

…Respondent.

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

For petitioner :

Shri Rakesh Manta, Advocate.

For respondent :

Shri Rahul Mahajan, Advocate

AWARD

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

“Whether the termination of services of Shri Brij Lal S/o Shri Beli Ram w.e.f. 15.9.2001

by the General Manager and Vice President, M/s Pamwi Tissues Ltd., Village Jharmajri,

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P.O Barotiwala, district Solan, H.P on completion of more than 240 days of continuous

service, without complying with the provisions of section 25-N, 25-G and 25-H of the

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

including seniority and back wages the above workman is entitled to? ”

The petitioner has filed the claim stating that he was appointed as helper by the

respondent on 8.10.1983 and was retrenched from the services on 15.9.2001 in violation of the

provisions of Industrial Disputes Act, 1947. The petitioner completed 240 days in a calendar year

before his retrenchment. No notice was issued to the petitioner and he was also not paid wages in

lieu of his dismissal. Consequently, petitioner prayed that he be reinstated with full back wages

along-with consequential service benefits.

The respondent contested the claim of petitioner by filing a reply wherein a

preliminary objection was taken that there was a settlement between respondent and workers union

under section 12(3) and section 18(1) of Industrial Disputes Act, 1947. No other workers raised any

objection. The factory of the respondent was declared as sick company by Board for Industrial and

Financial Reconstruction (BIFR) and a scheme of rehabilitation was also framed. As such, the

management and the workers union entered into an agreement. As per settlement, services of

twenty one workers were dispensed with and they were given compensation. All the other workers

accepted the compensation and left the factory premises except the present petitioner. The

petitioner was in the habit of litigations against the respondent and it was 4th/5th case filed by the

petitioner against the respondent. On merits, respondent did not dispute that petitioner was

appointed on 8.10.1983. However, it was submitted that petitioner was not retrenched as alleged by

him. In fact, the respondent company was declared sick unit and a order of winding up was passed.

The other workers were paid compensation as per the settlement arrived at between management

and workers union. The petitioner was also offered to collect the compensation amount but he did

not come forward to collect the same. Consequently, respondent prayed for the dismissal of the

claim.

Petitioner filed rejoinder wherein he expressed his ignorance as to the settlement

between the management and workers union and further reasserted the averments already made in

the petition.

On the pleadings of the parties, the following issues are framed.

Whether the termination of services petitioner by the respondent w.e.f.

15.9.2001 on completion of more than 240 days of continuous service and

without complying the provisions of section 25-N, 25-G and 25-H of

Industrial Disputes Act, 1947 is proper and justified?

….OPR

If the issue no.1 is not proved to what relief of service benefits including

back wages and seniority the petitioner is entitled to?

…OPP

Relief.

The aforesaid issues were read over and explained to both the parties. No other issue

was pressed and claimed. Evidence of both the parties on the aforesaid issues were recorded.

I have heard both the parties and gone through the record carefully.

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

Entitled to lump sum compensation of Rs. Two lakhs only.

Reasons for finding

Issue No. 1 & 2.

Both these issues are interconnected and can be disposed of by a single finding.

10.

After hearing both the parties and going through the record, I am of the considered

opinion that the services of the petitioner have not been terminated w.e.f. 15.1.2001 as alleged by

him. I find sufficient evidence on record to establish that the respondent company was declared sick

and winding up order has been passed by the competent authority. As such, there is no question of

reinstatement of the petitioner, because, the respondent factory is not running.

11.

Although, the petitioner in his testimony as PW-1 has deposed that before his

termination he completed 240 days in a calendar year and without any notice and compensation, he

was thrown out from the services. At the same time, he has also stated that the factory is closed

now nad no worker is working in the factory. This statement of petitioner is sufficient to establish

that the respondent factory has been closed and no factory is running at present.

12.

On behalf of respondent, Shri Khushi Ram Sharma, authorized officer from the

respondent stepped into the witness box as RW-1 and his testimony is revealing that the respondent

factory was declared sick industry by BIFR (Board for Industrial and Financial Reconstruction).

His statement is further revealing that an order was passed for the winding up of the respondent

company and as per rehabilitation scheme an agreement Ex. RB was entered and the respondent

company was taken over by Shri Prem Chand Goel. He has further deposed that the company was

taken over on lease for a period of nine years by Shalimar Wires Industries Ltd. On 10.4.2001, a

settlement was arrived at between the management and workers union, as the result, twenty one

workers were dispensed with and they were paid due compensation. The settlement deed is Ex. RD.

13.

RW-1 Shri Khushi Ram Sharma categorically deposed that the petitioner Brij Lal

did not accept the compensation offered to him instead he raised industrial dispute. He has further

stated that after 2001, petitioner being a technical man (helper) was gainfully employed. His

statement is also revealing that the order of BIFR (Board for Industrial and Financial

Reconstruction) Ex. RF as to the winding of the company was stayed by the appellate Authority

vide order Ex. RG. However, Learned Counsel for respondent on 24.7.2012 moved an application

to file on record the copy of order dated 15.3.2012 annexure RA passed by the Appellate Authority

for Industrial and Financial Reconstruction New Dehli. Said application was allowed and the

aforesaid order annexure RA was taken on record. This order is revealing that the order passed by

BIFR as to the winding up of the respondent company has been upheld and the appeal is dismissed.

14.

Thus, the aforesaid evidence on record established that an order has been passed by

the Competent Authority as to the winding up of the respondent company. The other workers were

given due compensation and they have left the company. The petitioner himself has admitted this

fact. So, legally speaking he is also entitled for compensation.

15.

For the aforesaid reasons, it cannot be held that the petitioner has been retrenched or

terminated by the respondent in contravention of the provisions of Industrial Disputes Act, 1947.

Since, respondent company was declared sick unit and now there is an order of winding up of the

respondent company, therefore, petitioner cannot be reinstated as the respondent company is not in

working condition and as such he is only entitled for compensation.

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16.

From the cross-examination of petitioner, it is clear that earlier he was offered

compensation to the tune of Rs. 1,51,372/- vide mark C as full & final settlement payment. The

respondent has expressed his ignorance as to the said offer.

17.

Taking into account all the facts and circumstances of the case, I am of the opinion

that petitioner is technical workman, so, it cannot be believed that after 2001, he remained without

any job/work or he was not gainfully employed. Thus, he is entitled to lump sum compensation

from the respondent company which is assessed to the tune of Rs. two lakhs only.

18.

Accordingly, for the aforesaid reasons, issue no.1 is answered in negative. However,

the petitioner is entitled to lump sum compensation of Rs. two lakhs, as the result, issue no.2 is

answered in affirmative.

Relief.

For the reasons recorded hereinafter, the claim petition is allowed and the petitioner is

entitled to lump sum compensation to the tune of Rs. two lakhs only and as such the reference is

answered accordingly. Since, there is an order of winding up of the respondent company, therefore,

the petitioner is entitled to recover the aforesaid compensation amount from the assets of the

respondent company in accordance with law. 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 29th day of August, 2012 in the presence of

parties counsel.

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

_________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

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

Ref No. 58 of 2008.

Instituted on. 20.10.2008.

Decided on 18.8.2012.

Dhanvir Singh S/o Shri Heera Singh R/o Village Khirkhi (Rukhri), P.O. Shambuwala,

Tehsil Nahan District Sirmour, H.P.

…Petitioner.

Vs.

The Director Food Civil Supplies and Consumer Affairs, Himachal Pradesh Shimla-

The District Controller Food Civil Supplies and Consumer Affairs, Sirmour at

Nahan.

…Respondents

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

For petitioner :

Shri R.K Khidta, Advocate.

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For respondent :

Shri Jagdish Kanwar, Dy. DA.

AWARD

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

“Whether the termination of services of Shri Dhanvir Singh S/o Shri Hira Singh daily

wages driver by the 1) The Director, Food Civil Supplies and Consumer Affairs,

Himachal Pradesh Shimla-9 2) The District Controller, Food Civil Supplies and

Consumer Affairs, Sirmour at Nahan w.e.f. 31.3.1985 and 13.8.1994 without complying

with the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not,

what amount of back wages, seniority, past service benefits and compensation the

above worker is entitled to from above employer? ”

The petitioner has filed the claim petition stating that he was engaged as a driver on

daily wages by the respondents on 17.6.1983 and he worked as such till 31.3.1985 when his

services were terminated by the respondents illegally and without following the mandatory

provisions of Industrial Disputes Act, 1947. The petitioner filed a Civil Suit at Nahan and also filed

an application under Order 39 Rules 1 & 2 C.P.C which was allowed by Ld. Sub Judge, Nahan vide

order dated 6.6.1985 and consequently, respondents were restrained from terminating the services

of petitioner. The suit of petitioner was dismissed by Ld. Sub Judge, Nahan, so, he filed an appeal

which was allowed by Ld. District Judge, Nahan. The respondents preferred R.S.A (Regular

Second Appeal) before the Hon’ble High Court which was dismissed. But despite the said order of

the Hon’ble High Court, the respondents again illegally terminated the petitioner w.e.f. 13.8.1994

without following the mandatory provisions of Industrial Disputes Act, 1947. The petitioner again

filed Civil Suit before Ld. Sub Judge, Nahan which was dismissed on the ground of jurisdiction.

Thereafter, petitioner approached H.P Administrative Tribunal against illegal and arbitrary order of

the respondents. The case of petitioner was registered as OA No. 569/1994 which was dismissed on

the basis of jurisdiction by the Tribunal. Consequently, petitioner filed a demand notice before

Labour Inspector-cum-Conciliation Officer, Nahan where the conciliation proceedings failed.

Consequently, the present reference was received. The petitioner stated that he completed more

than 240 days in a calendar year prior to his illegal termination but no notice was served upon him

before his termination as required under section 25-F of Industrial Disputes Act, 1947. Not only

this, the respondents also engaged workmen junior to him, hence, violated the principle of “last

come first go”. Hence, the present petition was filed with the prayer to set aside the termination

orders dated 31.3.1985 and 13.8.1994 respectively and petitioner be reinstated in service with all

the consequential benefits including full back wages.

The claim of the petitioner was contested by the respondents by filing reply wherein

they did not dispute that the petitioner was engaged as daily wager driver on 17.6.1983. It was

stated that the services of petitioner were extended after getting the sanction for three months. The

last sanction of engagement of petitioner was given w.e.f. 2.1.1985 to 31.3.1985 when he was

terminated w.e.f. 31.3.1985. However, there was break in service after the gap of every 90 days.

The respondents did not dispute the filing of civil suit by the petitioner in the Court of Ld. Sub

Judge, Nahan and its appeal before Ld. District Judge, Nahan and R.S.A before Hon’ble High

court. Thereafter, the services of petitioner were retrenched w.e.f. 20.10.1993 and not from

13.8.1994 after giving a notice under section 25-F of Industrial Disputes Act, 1947 alongwith the

compensation of Rs. 11,000/-. The petitioner did not receive the same and refused to take the

compensation amount and left the office without any reason. Thereafter, the Bank Draft was sent to

the petitioner through register post which he refused to receive. The respondents admitted that

again petitioner had filed a civil suit in the Court of Ld. Sub Judge, Nahan against his termination

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order dated 18.10.1993 wherein an application under Order 39 Rules 1 & 2 C.P.C was also filed

and Ld. Sub Judge, Nahan passed an interim order dated 22.10.1993 to maintain status-quo qua the

services of petitioner. However, on 12.5.1994, Ld. Sub Judge, Nahan vacated the aforesaid interim

order on the jurisdiction point. The respondents further stated that after the termination of services

of petitioner in 1985 a regular driver Shri Ami Chand was appointed in October, 1985. The

respondents admitted that petitioner had filed an O.A No. 569/194 before the H.P Administrative

Tribunal and interim order was passed on 27.5.1994 which was vacated on 12.8.1994 and the

aforesaid O.A was dismissed as withdrawn. The respondents also admitted that consequently, the

petitioner had filed demand notice before Labour Inspector-cum-Conciliation Officer, Nahan and

thereafter the present reference was filed in this Court. It was further stated that after the vacation

of interim order dated 27.5.1994, on 12.8.1994, the notice and compensation in terms of section 25-

F of Industrial Disputes Act was again sent to the petitioner through register AD on 4.10.1994 but

the same was again received back as the petitioner refused to receive the same. But, the respondents

complied with the mandatory provisions of section 25-F, hence, the termination order of petitioner

were not illegal. Accordingly, respondents prayed for the dismissal of the claim petition.

Petitioner filed rejoinder wherein he denied the averments made in the reply by the

respondents and further reasserted the averments already made in the claim petition.

On the pleadings of the parties, the following issues are framed.

Whether the termination of services of petitioner being daily wages driver by

the respondents w.e.f. 31.3.1985 and 13.8.1994 without complying with the

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

alleged?

…OPP

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

benefits and compensation, the petitioner is entitled to?

…OPP

Relief.

The aforesaid issues were read over and explained to both the parties. No other issue

was pressed and claimed. Evidence of both the parties on the aforesaid issues were recorded.

I have heard both the parties and gone through the record carefully.

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

under:

Issue No.1

Yes.

Issue No. 2

Entitled for lump sum compensation of Rs. Two lakhs.

Relief.

Reference answered in negative and the relief is granted to the petitioner per

operative part of award.

Reasons for finding

Issue No.1

After hearing both the parties and going through the record carefully, I am of the

considered opinion that the termination of services of petitioner on 31.3.1985 and 13.8.1994

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

consequently unjustified and liable to set aside.

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10.

From the pleadings of the parties, it is not disputed fact that the petitioner was

engaged as a driver on daily wages by the respondents on 17.6.1983 and he remained in service till

31.3.1985 when he was terminated from services. In the light of pleadings as well as evidence on

record, it stands established that the petitioner filed a civil suit in the Court of Ld. Sub Judge,

Nahan in the year of 1985 and also filed an application for interim order under order 39 rules 1 & 2

C.P.C wherein the respondents were restrained from terminating the services of petitioner. Ex. PB,

is the copy of order passed by Ld. Sub Judge, Nahan in the application under order 39 rules 1 & 2

C.P.C. The petitioner Shri Dhanvir Singh stepped into the witness box as PW-1 and deposed all

these facts. His testimony is further revealing that the civil suit was dismissed by Ld. Sub Judge,

Nahan but he filed an appeal before Ld. District Judge, Nahan which was allowed in his favour and

thereafter, respondents preferred R.S.A before Hon’ble H.P. High Court which was dismissed. This

fact is not disputed by the respondents as is evident from the cross examination of petitioner

Dhanvir Singh. The testimony of petitioner is also revealing that by the order of the Court, he could

not be terminated by the respondents and even after 31.3.1985, he remained in service and the

termination order dated 31.3.1985 was set aside by the Court. Hence, in the light of aforesaid

evidence, it stands established that the termination order of petitioner dated 31.3.1985 is unjustified

and illegal and it has been set aside by the Civil Court and the order of Ld. District Judge, Nahan

has been affirmed by the Hon’ble H.P High Court in R.S.A.

11.

The petitioner has further deposed that again he was terminated by the respondents

w.e.f. 13.8.1994 without following the mandatory provisions of Industrial Disputes Act, 1947,

consequently, he again filed civil suit before Ld. Sub Judge, Nahan on 13.8.1994. But it is the plea

of respondents that the petitioner was terminated on 20.10.1993 and not on 13.8.1994. The

termination order Ex. RW-1/L dated 18.10.1993 is revealing that the petitioner was retrenched by

the respondents department w.e.f. 20.10.1993.

12.

The evidence on record is revealing that after the aforesaid termination order, the

petitioner again filed a civil suit before Ld. Sub Judge, 1st Class, Nahan wherein he filed an

application under order 39 rules 1 & 2 C.P.C bearing C.M.A No. 88/6 of 1993 instituted on

22.10.1993 and vide copy of order Ex. RW-2/H, Ld. Sub Judge, 1st Class, Nahan had directed the

respondents to maintain status-quo qua the services of the petitioner. This order is revealing that the

termination order of petitioner could not be implemented till 22.10.1993. So, in-view of the

aforesaid order of Ld. Sub Judge, 1st Class, Nahan, the petitioner remained in service even after

20.10.1993. Vide order Ex. RW-2/J dated 12.5.1994 Ld. Sub Judge, 1st Class, Nahan dismissed the

C.M.A No. 88/6 of 1993 field by the petitioner under order 39 rules 1& 2 C.P.C and vacated the

earlier status-quo order. The petition was dismissed for want of jurisdiction of Civil Court. Vide

order Ex. RW-2/K dated 30.6.1994, the petitioner had withdrawn his civil suit also.

13.

The record is further revealing that thereafter, petitioner filed a petition before

Hon’ble State administrative Tribunal and on 27.5.1994, the Tribunal passed a interim order with

the direction to allow the petitioner to work as he was working in May, 1994. That means, till

27.5.1994, the petitioner could not be removed from service.

14.

However, vide order Ex. RW-2/M dated 12.8.1994, the interim order dated

27.5.1994 was vacated by the Hon’ble State Administrative Tribunal. The petitioner in his

testimony has categorically deposed that he remained in service as per the orders of the Court and

State Administrative Tribunal from 31.3.1985 to 12.8.1994.

15.

Although, the witness of respondents RW-1 Shri Pratap Chand, District Controller,

Food & Civil Supplies, Nahan has deposed that the services of petitioner were terminated w.e.f.

20.10.1993 vide copy of order Ex. RW-1/L, but, in-view of aforesaid orders of the Court as well as

State Administrative Tribunal, said termination orders could not be implemented and eventually,

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the petitioner was terminated w.e.f. 13.8.1994, that is why, in the reference date of termination has

been mentioned as 13.8.1994.

16.

RW-1 Shri Pratap Chand has deposed that after issuing the termination order of the

petitioner, a notice along-with one month’s wages and compensation to the tune of Rs. 11,000/-

was sent to the petitioner. The copies of notices are Ex. RW-1/N & Ex. RW-1/O.

17.

The respondent has examined one another witness RW-2 Shri Jageer Singh,

Superintendent from the office of District Controller, Food and Civil Supplies, Nahan and he has

deposed that the aforesaid amount of Rs. 11,000/- alongwith termination order of the petitioner

were sent to him through registered post vide receipt Ex. RW-2/A. He has further deposed that the

petitioner had sent back the Bank Drafts, that means petitioner refused to accept the amount of Rs.

11,000/-. RW-2 has further deposed that thereafter, in the year of 1996, the amount of Bank Draft

to the tune of Rs. 11,000/- was deposited in the Government Treasury vide challan Ex. RW-2/C.

18.

Thus, the aforesaid evidence of respondent establish that the termination order of the

petitioner were w.e.f. 20.10.1993 but those were implemented on 13.8.1994 because of the

intervention of the Court and the respondents have complied with the mandatory provisions of

section 25-F of the Industrial Disputes Act, 1947 by sending notice/termination order of the

petitioner to him alongwith his one month’s wages and compensation amount to the tune of Rs.

11,000/-. The evidence, on record, established that the petitioner had refused to accept the aforesaid

amount which was sent to him through register post but this refusal on the part of petitioner would

not make the respondent liable. For the aforesaid reasons, the compliance of section 25-F of

Industrial Disputes Act, 1947 was made by the respondents. Section 25-F of Industrial Disputes

Act, 1947 reads 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.”

19.

The evidence on record is revealing that the petitioner was engaged on daily wages

by the respondents on 17.6.1983 and remained in service till 31.3.1985 and there is break in service

after every ninety days. Legally speaking, this break is notional and for the purpose of section 25-F

of Industrial Disputes Act, 1947, stated hereinabove, the petitioner completed 240 days in a

calendar year prior to his termination on 31.3.1985. To mind, the break of one day was notional

break. Here, I am supported by Hon’ble High Court of H.P. in the matter of 2007 LLR 1155.

20.

However, for the reasons discussed hereinabove, the respondents have complied

with the mandatory provisions contained under section 25-F of Industrial Disputes Act, 1947.

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21.

At the same time, I am of the view that the evidence on record have established that

there is violation of section 25-H of Industrial Disputes Act, 1947 in this case, which reads as

under:

“RE-EMPLOYMENT OF RETRENCHED WORKMEN.---Where any workmen are

retrenched, and the employer proposes to take into his employ any persons, he shall in such

manner as may be prescribed, give an opportunity to the retrenched workmen who are

citizens of India to offer themselves for reemployment and such retrenched workmen who

offer themselves for reemployment shall have preference over other persons.”

22.

In the light of my aforesaid discussion, it stands established that initially petitioner

was terminated on 31.3.1985 and thereafter w.e.f. 20.10.1993 but the orders were implemented on

13.8.1994. I find sufficient evidence to establish that after the termination of services of petitioner,

respondents engaged other drivers. PW-2, Shri Ami Chand has deposed that he was engaged as a

driver by the respondents at Nahan in October, 1985 and he is still in the service. PW-2, Shri Jahid

Khan has deposed that he was engaged as a driver by the respondents on 3.8.1998 and worked till

15.1.2001. The petitioner has examined PW-5 Ms. Meena chauhan, Junior Assistant from the office

of District Controller, Food and Civil Supplies, Nahan and she has deposed that as per record Shri

Jahid Khan was appointed on daily wages as driver and thereafter one Nitin Kumar also drove the

vehicle of respondents. She has also deposed that at present there is no driver and the post is lying

vacant. So, it stands established on record that new persons were engaged by the respondent after

his retrenchment. It was obligatory and mandatory on the part of respondents to give an opportunity

to the petitioner and offer him re-employment in preference of other persons in view of section 25-

H referred to hereinabove. On this ground, the termination orders of petitioner are unjustified and

illegal and consequently, are hereby set aside.

23.

Accordingly, for the aforesaid reasons, this issue is decided in favour of the

petitioner.

Issue no. 2.

24.

For the reasons recorded hereinabove while deciding issue no.1, the termination

orders of petitioner are illegal and have been set aside. At the same time, it is relevant to mention

that on 18.7.2012, the petitioner filed an affidavit in the Court to the effect that he has already

attained the age of 58 years. Meaning thereby, he has attained the age of superannuation and cannot

be ordered to be reinstated in service by the respondents. On behalf of petitioner prayer was made

to give him the relief of full back wages with other service benefits. After due consideration and

keeping in view the facts and circumstances of the case, to my mind the petitioner is out of service

for the last 18 years. Before that, he was terminated on 31.3.1985 but remained in service till

12.8.1994 with the intervention of the Court orders. Here the testimony of petitioner PW-1 is

relevant. In his cross-examination, he has admitted that he was terminated in 1985 and he filed a

civil suit which was dismissed on 3.6.1988. He also admitted that he remained present in the office

as per the interim order of the Court but he was without work. This statement on the part of

petitioner is revealing that he was only reinstated by the respondents in compliance with the orders

of the Civil Court but no work was taken from the petitioner. Hence, it is not a fit case where the

full back wages could be awarded to the petitioner.

25.

On behalf of petitioner reliance has been made on 2010 (1) Him. L.R (D.B) 537

wherein for the violation of provisions contained under section 25-F of Industrial Disputes Act,

1947 full back wages have been awarded to the workmen. After due consideration, facts in hand are

not attracted, therefore, the aforesaid case law is not applicable to the present case. First of all, in

our case, there is no violation of section 25-F of Industrial Disputes Act, 1947. Moreover, in the

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case before Hon’ble H.P. High Court there were evidence on behalf of workmen that they were

unemployed during the period they were disengaged. But in our case, the petitioner could not lead

any evidence that after 13.8.1994, he remained unemployed and was not gainfully employed.

Consequently, I am of the opinion that the petitioner is not entitled to the back wages, instead he is

entitled to compensation.

26.

The Hon’ble Supreme Court in case of Santosh Kumar Seal and others reported in

2010 LLR 677: 2010 III CLR 17 SC has held that relief by way of reinstatement with back wages is

not automatic even if termination of an employee is found to be illegal or is in contravention of the

prescribed procedure and that mandatory compensation in lieu of reinstatement and back wages in

cases of such nature may be appropriate.

27.

In case reported in (2009) 15 SCC 327 titled as Jagbir Singh Vs. Haryana State

Agricultural Marketing Board it was held that:

“It is true that the earlier view of this Court articulated in many decisions reflected the legal

position that if the termination of an employee was found to be illegal, the relief of

reinstatement with full back wages would ordinarily follow. However, in recent past, there

has been a shift in the legal position and in a long line of cases, this Court has consistently

taken the view that relief by way of reinstatement with back wages is not automatic and

maybe wholly inappropriate in a given fact situation even though the termination of an

employee is in contravention of the prescribed procedure. Compensation instead of

reinstatement has been held to meet the ends of justice."

28.

Hence, in the light of aforesaid discussion, petitioner is not entitled to the

reinstatement and back wages along-with other service benefits but he is entitled to receive a

suitable compensation from the respondents. Taking into account facts and circumstances of the

case, the ends of justice would meet if the compensation in lieu of back wages and other service

benefits is awarded to the petitioner. I am of the opinion that compensation to the tune of Rs. two

lakhs only is appropriate, just and equitable and the same is hereby awarded to the petitioner.

Accordingly, this issue is decided in favour of petitioner.

Relief.

For the reasons recorded hereinabove, the claim petition is allowed and the reference is

hereby answered in negative. The termination of services of petitioner by the respondents w.e.f.

31.3.1985 and 13.8.1994 is hereby declared illegal and not justified. However, instead of

reinstatement, back wages, seniority and other service benefits, the petitioner is held entitled to the

compensation of Rs. two lakhs only which shall be paid by the respondents within two months

from today failing which the same shall carry interest @ 9% per annum. 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 18th day of August, 2012 in the presence of

parties counsel.

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

4318

jkti=] fgekpy izns'k] 17 vDrwcj] 2012@25 vkf'ou] 1934

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-

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

Ref. No. 13 of 2002.

Instituted on. 17.1.2002

Decided on. 31.8.2012.

Pushpinder Singh S/o Shri Karam Chand R/o Village and P.O Panjehra, Tehsil Nalagarh,

District Solan, H.P.

…Petitioner.

Vs.

M/s Shivalik Hatcheries Unit-II, VPO Panjehra, Tehsil Nalagarh, District Solan, H.P

through its Managing Director.

…Respondent.

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

For petitioner :

J.C Bhardwaj , AR.

For respondent :

Shri Rajeev Shasrma, Advocate

AWARD

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

“Whether the enquiry which caused the termination of the services of Shri Pushpinder

Singh S/o Shri Karam Chand w.e.f. 20.10.2000 by the Managing Director, M/s Shivalik