jkti=] fgekpy izns'k

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f”keyk] 'kqØokj 19 vDrwcj] 2012@27 vkf'ou] 1934

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2 , 18^th October, 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:—

156&jkti=@2012&19&10&2012

¼4363½

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By order,

Sd/-

ACS ( Labour & Employment).

__________

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

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

Ref No. 26 of 2007.

Instituted on. 19.3.2007.

Decided on 14.9.2012.

Ashwani Kumar S/o Shri Dila Ram R/o Village Pather, P.O Piplughat, Tehsil Arki, District

Solan, H.P.

…Petitioner.

Vs.

M/s Ambuja Cement, Darlaghat, Tehsil Arki District Solan, H.P, through its General

Manager.

Sardar Machine Tools, D-45, Industrial Area, Phase-V, S.A.S Nagar, 160005.

…Respondents

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

For petitioner :

Shri Aman Sood, Advocate.

For respondent No.1 :

Shri Peeyush Verma, Advocate.

For Respondent No.2 :

Shri Manish Sirkek, Advocate.

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AWARD

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

“Whether the termination of services of Shri Ashwani Kumar S/o Shri Dila Ram

workman by (1) Management of M/s Gujrat Ambuja Cement, Ltd., Darlaghat, District

Solan, H.P (2) The Contractor, M/s Sardar Machine tools, D-45, Industrial Area, Phase-

V, SAS Nagar-160051 w.e.f. 14.11.2002 on the basis of domestic enquiry is proper and

justified? If not, what relief of service benefits and amount of compensation, the above

aggrieved workman is entitled to?”

The petitioner has filed the claim stating that he joined respondent No.1 in the year

of 1994 as Turner and continued till November, 2002. In July, 2002 chargesheet was served upon

the petitioner on the allegations that he had damaged Leth Machine and on 11.7.2002 while on

duty, the petitioner had committed theft of certain articles and he also remained absent from duties

thereby he was negligent. The petitioner was asked to submit his explanation within 48 hours.

Petitioner alleged that the charges were concocted, manipulated and manufactured, however,

petitioner submitted his reply on 15.7.2002. On 14.11.2007, the petitioner was alleged to have been

served a letter dated 14.11.2002 stating that charges against him were proved and as such his

services were terminated. In fact, petitioner did not receive any letter dated 14.11.2002 through

registered post and never refused to receive the same. No attempt was made by the respondents to

deliver the aforesaid letter to the petitioner. The petitioner stated that he was not given any

opportunity to cross-examine the witnesses of respondents and he was not associated during

enquiry. He was condemned un-heard as before his termination no show cause notice was served

upon him. The enquiry report was also not supplied to him, therefore, the entire enquiry report was

illegal being against the principles of natural justice. Consequently, petitioner prayed to set aside

his termination order and prayed that he be reinstated in service with all consequential benefits

including back wages.

Respondent no.1 filed reply wherein preliminary objections as to locus standi,

maintainability, suppression of material facts by the petitioner, estopple, non-joinder of necessary

parties and jurisdiction of this Court were raised. On merits, respondent no.1 denied that the

petitioner joined as Turned and continued till November, 2002. In fact, the petitioner never

remained the employee of respondent No.1, so, there was no occasion for the respondent No.1 to

serve any chargesheet and hold any enquiry against the petitioner. Consequently, respondent No.1

stated that the services of petitioner were never terminated. However, respondent no.1 stated that as

per information, the petitioner was working under respondent No.2 and he had committed

misconduct of theft, so, he was chargesheeted and after the enquiry he was terminated by

respondent No.2. As the result, respondent no.1 prayed for the dismissal of the petition.

Respondent No. 2 filed separate reply wherein preliminary objection as to

maintainability was taken as it was stated that the petitioner was not the employee of respondent

No. 2 and it was respondent no.1 which used to pay salary/wages to the petitioner. On merits,

respondent No. 2 stated that the petitioner was appointed as a Turner by respondent No.1 The

petitioner was working in the workshop of respondent no.1. He damaged Leth machine in the

workshop and thereafter, he remained absent from duties. The petitioner also committed theft of

certain articles. Consequently, he was chargesheeted and enquiry was held wherein the petitioner

participated and charges against him were proved. Thereafter, his services were terminated. The

petitioner attended each and every hearing of the enquiry, so, his termination was legal and

according to law. As the result, respondent No.2 also prayed for the dismissal of the petition.

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Petitioner filed rejoinder to both the replies filed by respondents wherein he denied

all the preliminary objections taken by the respondents in replies and further reasserted the

averments already made in the claim petition.

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

Whether the services of the petitioner have been legally terminated on the

basis of the domestic enquiry dated 14.11.2007? If so, its effect?

. .OPP.

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

entitled to?

. .OPP.

Whether the petitioner was not a workman of respondents? If so, its effect?

. .OPR.

Whether the petition in the present form is not maintainable?

. .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.

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

Partly no.

Issue No.4

No.

Relief.

Reference answered in negative as the termination of the petitioner is

improper and unjustified per operative part of award.

Reasons for finding

Issue No.1 & 3.

10.

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

11.

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

considered opinion that the serves of petitioner were illegally terminated on 14.11.2002. As the

result, he is entitled to be reinstated in service with seniority and continuity.

12.

In the light of reply filed by respondent No.1, it is clear that respondent no.1 has

disputed that the petitioner was engaged in service by it as a Turner. It was stated that he was the

workman of respondent No. 2. At the same time, reply filed by respondent No. 2 is revealing that

the petitioner was engaged in service by the respondent No.1.

13.

However, the testimony of RW-1 Sunil Sharma, who appeared on behalf of

respondent no.1 is relevant. This witness has stated that respondent No.2 was contractor for

mechanical maintenance of respondent No.1 and the factory premises belong to respondent No.1

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and on behalf of respondent No. 2 Gurmukh Singh appeared in the witness box as RW-2 who has

stated that for the alleged misconduct of damage to the Leth machine, theft of some articles and un-

authorised absence, the petitioner was chargesheeted by the respondent No.2 and enquiry was also

conducted by respondent No.2 against the petitioner and the petitioner was terminated by

respondent No. 2. In his cross-examination conducted by respondent no.1, this witness has admitted

that the petitioner was employee of respondent No. 2 and he was having no concern with

respondent No.1. Therefore, said evidence are sufficient to establish that in fact the petitioner was

the workman of respondent No.2. Moreover, the petitioner has challenged the chargesheet Ex. RP-

A/7 which was served upon him by respondent No.2 and further the petitioner has challenged his

termination letter Ex. RW-2/D dated 14.11.2002 which as also issued by respondentN.2. Therefore,

the petitioner himself has admitted that he was the employee/workman of respondent No. 2.

14.

Hence, for the aforesaid reasons, it is hereby held that before his termination, the

petitioner was workman of respondent No.2 and he was chargesheeted by respondent no.2 and

terminated by respondent No. 2.

15.

Now, comes the question whether the termination orders of petitioner issued by

respondent No. 2 are sustainable under law. After due consideration, to my mind said orders are

illegal having been passed on the basis of enquiry report Ex. PX-2 dated 13.9.2002 and for the

reasons to be recorded hereinafter, I am of the opinion that entire enquiry report as well as

termination orders of petitioner are against the principles of natural justice. I find sufficient

evidence that no opportunity of being heard was afforded to the petitioner and it appears that he has

been condemned unheard.

16.

The chargesheet Ex. RP-a/7 dated 12.7.2002 was served upon the petitioner for the

damage caused by petitioner to the Leth machine to the tune of Rs. 10,000/- and for committing

theft of certain material on 11.7.2002 while he was on duty and for remaining absent from duties

without any intimation w.e.f. 11.7.2002. There is nothing on record that prior to said chargesheet

any show cause notice was served upon the petitioner to explain his position regarding the

aforesaid allegations. There is nothing in testimony of RW-2 Gurmukh Singh who appeared on

behalf of respondent No.2 that prior to chargesheet, any show cause notice was served upon the

petitioner to explain his position, so, there is violation of principles of natural justice.

17.

The testimony of petitioner Ashwani Kumar is revealing that he was not associated

during the enquiry. He has categorically denied all the allegations leveled against him in the

chargesheet. He denied that enquiry proceedings Ex. PX-6 to Ex. PX-9 bear his signatures. His

testimony is revealing that the entire enquiry proceedings were carried out behind his back. From

the careful perusal of record, I find substance in the testimony of petitioner.

18.

The enquiry proceedings Ex. PX-2 are revealing that on 24.7.2007, the petitioner

Ashwani Kumar admitted the charges No. 1 & 3 as to the damage caused by him to the Leth

machine and his willful absence from duties w.e.f. 11.7.2002. Ex. PX-6, is revealing that there is no

categoric admission on the part of petitioner qua the aforesaid charges No. 1 & 3. Ex. PX-6, the

alleged enquiry proceedings, is revealing that the petitioner Ashwani Kumar had admitted both the

charges No. 1 & 3. The petitioner has categorically denied his signatures over Ex. PX-6. There is

no specific statement of petitioner as to the aforesaid admission to charges no. 1 & 3.

19.

Ex. PX-9 is the copy of proceedings of enquiry dated 6.9.2002. From the bare

perusal of Ex. PX-6 and Ex. PX-9, it is clear that both the enquiry proceedings are in the hands of

different persons. The author of both these proceedings is not the same person. That means both the

proceedings have not been drawn by the same enquiry officer. It has also caused doubt over the

fairness and genuineness of the enquiry officer.

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20.

Ex. PX-2, the proceedings in brief/finding of the enquiry is revealing that on

6.9.2002, one Shri Hem Raj Dogra submitted a complaint against the petitioner alleging that he was

manhandled, threatened and harassed by the brother of the petitioner who was hired as bus driver of

Maggu Transport. I fail to understand why the enquiry officer entertained said complaint on behalf

of Hem Raj because there was no charge against the petitioner that his brother, who was driver of

Maggu Transport has manhandled, threatened and harassed the Hem Raj Dogra. The enquiry

proceedings dated 6.9.2002 Ex. PX-9 are relating to the aforesaid allegation that the brother of

petitioner had beaten one Hem Raj Dogra. Since, there was no charge against the petitioner

regarding said allegation, therefore, the aforesaid evidence produced on record by respondent no.2

are liable to be ignored being beyond the scope of chargesheet.

21.

Also, Ex. PX-2 proceedings of enquiry is revealing that on 29.7.2002, the enquiry

officer recorded the statement of Hem Raj Dogra and also one Jaswant Singh. But the detailed

proceedings dated 29.7.2002 Ex. PX-8 are revealing that no statement of any witness was recorded,

therefore, the enquiry was adjourned for next date on 5.8.2002. The enquiry proceedings Ex. PX-2

is revealing that after 29.7.2002 the next date of enquiry was on 6.9.2002, but, in view of Ex. PX-8,

the enquiry proceedings were adjourned for 5.8.2002 from 29.7.2002. There is nothing on record to

show what happened on 5.8.2002 and how the enquiry proceedings were held on 6.9.2002 and how

on 6.9.2002 the presence of petitioner was procured.

22.

All the aforesaid evidence established that entire enquiry proceedings have became

doubtful and due opportunity of being heard was not afforded to the petitioner. Consequently, there

is violation of principles of natural justice while conducting the alleged enquiry against the

petitioner.

23.

On the top of it, Ex. PX-10, termination letter issued by respondent no.2 to the

petitioner is revealing that during enquiry the charges against the petitioner were proved and in

view of gravity and seriousness of the charges, the petitioner was terminated from the employment.

There is nothing on record that enquiry report was supplied to the petitioner and he was given

opportunity to explain on the punishment to be inflicted. No opportunity of being heard was

afforded to the petitioner before imposing a major penalty of termination. RW-2 Gurmukh Singh

has admitted in his cross-examination that enquiry report was not supplied to the petitioner and

before termination no show cause notice was given to him. Therefore, again there is a violation of

principles of natural justice before terminating the services of petitioner.

24.

Hence, in the light of my aforesaid discussion, it is hereby held that the services of

the petitioner were illegally terminated by the respondent No.2 on the basis of domestic enquiry

vide termination order dated 14.11.2002 as the petitioner has established that he was engaged by

respondent No.2 and not by respondent No.1, therefore, there was relationship of employer and

employee between petitioner and respondent No.2. Accordingly, issue No.1 is answered in

affirmative whereas issue No.3 is partly answered in negative.

Issue No. 2

25.

For the reasons to be recorded hereinabove while discussing issues No.1 & 3, the

termination orders of the petitioner dated 14.11.2002 issue by respondent No.2 are hereby set aside

and the petitioner is entitled to reinstatement in service with immediate effect on the same terms

and conditions along-with seniority and continuity. 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.

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Issue No. 4

26.

From the careful perusal of record, there is nothing to suggest that the petition is not

maintainable in the present form. Hence, this issue is answered against the respondent.

Relief

For the reasons recorded hereinabove, the claim of the petitioner is allowed and the

reference is answered in negative as the termination of the services of the petitioner is improper and

unjustified. Consequently, the petitioner is entitled to reinstatement in service with immediate

effect on the same terms and conditions with seniority and continuity 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 14th day of September, 2012 in the presence of

parties counsel.

By order,

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. 74 of 2007.

Instituted on. 24.8.2007.

Decided on 1.9.2012.

Bimla Negi W/o Shri Bhagi Rath R/o Bindra Niwas, Panthaghati, Kasumpati, Shimla-9.

…Petitioner.

Vs.

The General Manager, Gujrat Ambuja Cement, Ltd., P.O Darlaghat, Tehsil Arki,

District Solan, H.P.

The Branch Manager, Gujrat Ambuja Cement Ltd., Khalini Shimla-2.

…Respondents

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

For petitioner :

Shri J. R. Sharma, Advocate.

For respondent :

Shri Peeyush Verma, Advocate.

AWARD

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

“Whether the termination of services of smt. Bimla Negi W/o Shri Bhagi Rath workman

by the (1) the General Manager, Gujrat Ambuja Cement, Ltd., P.O Darlaghat, Tehsil

Arki, District Solan, H.P. (2) Branch Manager, Gujrat Ambuja Cement Ltd., Khalini

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Shimla-2. w.e.f. 1.2.2007 without complying the provisions of Industrial Disputes Act,

1947 is proper and justified? If not, what relief of service benefits and amount of

compensation the above aggrieved workman is entitled to? ”

The petitioner has filed the claim stating that she was working in the respondent

company since 1994 at different places. She was paid Rs. 3,000/- per month. The petitioner was

posed in the hostel at Navbahar as a cook and she worked there till 1995 when the hostel was

shifted to New Shimla for five years and thereafter, hostel was again shifted to Sanjauli, where she

worked for three years. Thereafter, the hostel was again shifted to Navbahar where the petitioner

worked for six months and thereafter, the hostel was closed and the petitioner was transferred to

Khalini office from where she was illegally terminated on 1.2.2007. No show cause notice was

served upon her before termination and she was not given any opportunity of being heard. The

petitioner remained employed for about thirteen years and she had completed more than 240 days

in a single calendar year prior to her termination. After her termination, the respondent had

employed other persons junior to her. Therefore, the respondent violated the provisions of section

25-F and 25-H of the Industrial Disputes Act, 1947. Consequently, petitioner prayed to set aside her

dismissal order w.e.f. 1.2.2007 and prayed for reinstatement with full back wages and other

consequential service benefits.

The respondents contested the claim by filing a reply wherein preliminary objections

as to locus-standi, maintainability of the petition, suppression of material facts by the petitioner,

estoppel, limitation and non-joinder of necessary parties were taken. On merits, the respondents

denied that the petitioner was employed in 1994 as alleged by her. The respondent further denied

that the petitioner worked as a cook in the Navbahar hostel and thereafter in the hostel at New

Shimla, Sanjauli and finally again at Navbahar. As per respondent, they were not running any

hostel at Navbahar. It was also denied that hostel was closed and thereafter, the petitioner was

shifted to Khalini office where she worked till 1.2.2.007. Since, the petitioner was not working with

the respondents therefore, there was no occasion to terminate her services, hence, there was no

question of giving any opportunity of being heard to the petitioner. Hence, there was no violation of

any provisions of Industrial Disputes Act, 1947 on the part of respondents. Consequently,

respondents prayed for the dismissal of the claim petition.

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

the respondents in reply 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 is illegal and

unjustified?

. .OPP.

If issue no.1 is proved in affirmative, to what service benefits and amount of

compensation, the petitioner is entitled to?

. .OPP.

Whether this petition is not maintainable as pleaded?

. .OPR.

Whether this petition is bad for non joinder of necessary parties?

. .OPR.

Relief.

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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

Become redundant.

Issue No. 2

No.

Issue No. 3

No.

Issue No. 4

No.

Relief.

Reference answered as per award and no relief is granted to the petitioner.

Reasons for finding

Issue No. 1& 2.

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

10.

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

considered opinion that the petitioner is not entitled to any relief as prayed by her.

11.

From the careful scrutiny of the evidence on record, I do not find sufficient evidence

to establish that the petitioner was employed by the respondent and she had worked in the hostel of

the respondents and finally in the Khalini office of the respondents. Consequently, there was no

occasion of the respondents to terminate her services w.e.f. 1.2.2007. As such, there is no violation

of any provisions of Industrial Disputes Act, 1947 on the part of respondents.

12.

The respondents have categorically denied that petitioner was employed by them

and she had worked as a workman under them. On behalf of respondents Shri Sunil Sharma, the

Assistant Manager stepped into the witness box as RW-1 and he has categorically deposed that

petitioner never remained on the roll of the respondents. His testimony is further revealing that

petitioner never worked in the hostel of respondents at Navbahar and she also did not work in the

Khalini office of the respondents and she was not terminated on 1.2.2007.

13.

In the light of aforesaid testimony of RW-1 Shri Sunil Sharma, the burden was

heavily upon the petitioner to prove that she remained employee of the respondents and she joined

the respondent company in the year of 1994. In support of this plea, there is only bald statement of

petitioner Bimla Negi. To my mind, this statement of petitioner is not sufficient to prove her case.

In her cross-examination, she has made clear that no appointment letter was issued to her by the

respondents. She has also failed to produce any receipt of the wages paid to her by the respondents.

No document in any manner, whatsoever, was produced by the petitioner to show that she had in-

fact worked under the respondents. She admitted that the attendance register was maintained in the

office of the respondents, but, she did not produce in evidence any such attendance register to show

that in-fact she had worked in the office of the respondents. There is no evidence on record to show

that there is a hostel of respondents which was earlier running at Navbahar and thereafter it was

shifted to New Shimla then to Sanjauli and finally again to Navbahar. So, in the absence of any

evidence, it cannot be held that in-fact the petitioner had worked in the hostel of respondents and

finally she was working in the Khalini office of the respondents.

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14.

On behalf of petitioner, strong reliance was made on the documents Ex. PW-1/A.

Ex. PW-1/A which are relating to information obtained under Right to Information Act as to the

EPF of the petitioner. The aforesaid documents are only revealing that the information as to the

EPF was supplied but these documents do not reveal that the petitioner was contributing any

amount towards EPF. Ex. PW-1/A is revealing that nomination form of Smt. Bimla Negi petitioner

is not available in the office of Regional PF Commissioner, Shimla. So, Pw-1/A is not any proof to

establish that petitioner Bimla Negi remained employee of the respondents.

15.

Consequently, in the light of my aforesaid discussion, I do not find any evidence on

record to establish that petitioner Bimla Negi served as a workman under the respondents. As the

result, there is no question of terminating her services by the respondents w.e.f. 1.2.2007. Hence,

the petitioner is not entitled to any service benefits as prayed by her. Since, she was not the

employee of the respondents, therefore, there is no violation of section 25-F and 25-H on the part of

respondents as alleged by the petitioner.

16.

Accordingly, for the aforesaid reasons issue No.1 has become redundant and

answered accordingly whereas issue no.2 is answered against the petitioner.

Issue No. 3.

17.

Form the perusal of record there is nothing to suggest that the petition is not

maintainable as the petitioner has categorically pleaded herself to be the employee of respondents

and has further pleaded that she was illegally terminated w.e.f. 1.2.2007. However, said plea could

not be proved by the petitioner but as far as petition is concerned, it is maintainable. Hence, this

issue is answered against the respondents.

Issue No. 4

18.

From the careful perusal of record, there is nothing to suggest that the petition is bad

for non-joinder of necessary parties, hence, this issue is also decided against the respondents.

Relief.

For the reasons recorded hereinabove, the claim of the petitioner is dismissed and the

reference is answered accordingly and as such the petitioner is not entitled to any service benefits

as prayed. 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 1st day of September, 2012 in the presence of

parties counsel.

By order,

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. 68 of 2009.

Instituted on. 17.8.2009.

Decided on 6.9.2012.

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Daulat Ram S/o Shri Thali Ram R/o Village Urman BPO Munish Bhalli, Tehsil Rampur

Bushahr, District Shimla, H.P.

…Petitioner.

Vs.

The District Forest Officer, Forest Department, Rampur Bushahr District Shimla, H.P.

…Respondent.

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

For petitioner :

None.

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 Daulat Ram S/o Shri Thali Ram by

Divisional Forest Officer Division Rampur Bushahr District Shimla H.P w.e.f. 1.8.2003

without complying the provisions of the Industrial Disputes Act, 1947 whereas junior to

him are retained by the above employer, as alleged by the workman, is proper and

justified? If not, what relief of service benefits and amount of compensation above

aggrieved workman is entitled to? ”

The petitioner has filed the claim stating that he joined respondent as beldar in

January, 1998 and continued till 31.7.2003. On 1.8.2003, the petitioner was orally terminated by

the respondent without any reason. The petitioner was told that whenever the work would be

available, muster roll would be issued and he would be engaged on work but the petitioner was not

engaged. The petitioner had worked continuously and completed 240 days in the calendar year

prior to his termination. No notice under section 25-Fwas served upon the petitioner. The

respondent engaged fresh workmen on work, hence, the principles of last come first go was not

followed. As the result, the petitioner filed claim petition with the prayer to set aside his

termination order dated 1.8.2003 and he also prayed that he be reinstated with all consequential

service benefits along-with back wages.

In reply, the respondent took preliminary objections as to maintainability, estopple

and suppression of material facts by the petitioner. On merits, the respondent admitted that the

petitioner was engaged on daily wages labourer in March, 1998 and he worked till 31.8.2008 at

different places. It was stated that petitioner himself abandoned the work and did not turn up w.e.f.

1.9.2002 to 31.12.2005. He came back on 1.1.2006 and worked till 29.1.2008, thereafter, he again

abandoned the job. Respondent denied that the petitioner worked till 31.7.2003. The petitioner only

completed 240 days in 1999 and 2000 but he did not complete 240 days in a calendar year prior to

1.8.2003. Since, the petitioner willfully abandoned the job, therefore, he could not be reinstated.

The respondent also denied that junior workmen to the petitioner were retained or fresh workers

were engaged after the alleged termination of petitioner. Hence, there was no question of violation

of provisions of section 25-B and 25-H of Industrial Disputes Act, 1947. Consequently, respondent

prayed for the dismissal of petition.

Petitioner did not file any rejoinder. On the pleadings of the parties, the following

issues are framed.

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Whether the services of the petitioner were illegally terminated in

contravention of the provisions of the Industrial Disputes Act, 1947 as

alleged?

. .OPP.

Issue no.1 is proved in affirmative, to what service benefits, the petitioner is

entitled to?

. .OPP.

Whether this petition is barred by limitation?

. .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 Ld. Dy. DA 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

Not entitled to any relief.

Issue No.3

No.

Relief.

Reference answered as per award and no relief is granted to the petitioner.

Reasons for finding

Issue No. 1.

After hearing the arguments and going through the record of the case, I am of the

considered opinion that the petitioner could not prove that he was illegally terminated by the

respondent in contravention of provisions of Industrial Disputes Act, 1947.

As per reference received in the Court, the petitioner challenged his termination

w.e.f. 1.8.2003 on the ground that junior to him were retained by the respondent. In support of this

contention, the petitioner could not lead any evidence whatsoever. The record is revealing that the

petitioner availed so many opportunities to lead evidence, but in vain. The issues were framed on

15.6.2009 and on 7.9.2010 was the first date for the evidence of petitioner. Lastly, the case was

fixed for the evidence of petitioner on 6.9.2012 when neither the petitioner nor any evidence on his

behalf was present. Hence, in the absence of any evidence, it could not be held that after 1.8.2003,

the respondent had retained junior workmen to the petitioner or fresh workmen were engaged by

the respondent.

10.

Moreover, the respondent had filed on record the seniority list of daily waged

worker annexure R-2 which is revealing that the names of fifty one workmen. In the said list, the

petitioner is mentioned at serial number fifty. Only one workman named Santosh Kumar had been

shown junior to him but he has been also shown left the job. This seniority list is revealing that

after 2003 Santosh Kumar junior to petitioner did not work for a single day till 2008. So, the

annexure R-2 is specific proof to show that junior workman to petitioner was not retained by the

respondent after 2003.

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11.

Although, the petitioner has filed the claim petition stating that before terminating

him, no notice under section 25-F was served upon him as he had completed 240 days in the

calendar year prior to his termination on 1.8.2003. As discussed hereinabove, the petitioner could

not lead any evidence in support of this plea, first of all this plea is not tenable under law as this

plea is beyond the scope of reference. Further, record is revealing that petitioner did not complete

240 days in a calendar year just before his termination w.e.f. 1.8.2003.

12.

The respondent has filed on record the mandays chart of petitioner annexure R-1 for

the year 1997-98 to 29.1.2008. This mandays chart is revealing that in August, 2003, the petitioner

worked for 18 days and thereafter he abandoned the job and came back in Jan., 2006 and did work

for 12 days. Prior to August, 2003 in a calendar year, the petitioner did not complete 240 days,

hence, the provisions of section 25-F are not attracted. So, there was no legal requirement to serve

any notice upon the petitioner under section 25-F of Industrial disputes Act, 1947.

13.

Hence, in the light of my aforesaid discussion, there is nothing on record to show

that the termination of petitioner w.e.f. 1.8.2003 is illegal and against the provisions of Industrial

Disputes Act, 1947. Hence, this issue is answered against the petitioner.

Issue No. 2.

14.

Since, issue No.1 has been decided against the petitioner, therefore, he is not entitled

to any service benefit. Accordingly, this issue is decided against the petitioner.

Issue No. 3

15.

Form the careful perusal of record, there is nothing to show that present petition is

time barred. The reference was received in the Court on 17.8.2009 and petitioner filed the claim

petition on 9.11.2009. As the result, this issue is decided against the respondent.

Relief.

For the reasons recorded hereinabove, while discussing aforesaid issues, the claim of the

petitioner is dismissed and the reference is answered in affirmative. The petitioner has failed to

establish that his services were wrongly and illegally terminated w.e.f. 1.8.2003 in violation of the

provisions of Industrial Disputes Act, 1947. Hence, it is hereby held that the termination orders of

petitioner are proper and justified. 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 6th day of September, 2012 in the presence of

parties counsel.

By order,

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. 34 of 2011.

Instituted on. 3.8.2011.

Decided on 5.9.2012.

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Lal Chand S/o Shri Jagat Ram R/o Kaushalya Bhawan, Near SSN School, Govind Mohalla,

Totu Shimla-11, H.P.

…Petitioner.

Vs.

The Director, Youth Services and Sports, Government of H.P. Shimla.

…Respondent.

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

For petitioner :

Shri Rohit Sharma, Advocate.

For respondent :

Shri Jagdish Kanwar, Dy. DA.

AWARD

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

“Whether the demand of Shri Lal Chand s/o Shri Jagat Ram daily wage driver, who was

terminated from service w.e.f. April, 1999 without serving charge-sheet, without holding

enquiry and complying with the provisions of the Industrial Disputes act, 1947 before the

Director Youth Service and Sports, Government of H.P Shimla for his reinstatement on

the basis of order dated 29.6.2004 of the Hon’ble H.P State Administrative Tribunal in

O.A No. 3194/99 filed by him against the illegal termination is legal and justified? If yes,

to what service benefits and relief, the above named workman is entitled to?”

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

wages by the respondent w.e.f. 9.5.1995. He worked without any break till February, 1999 when he

was given break in service. However, he was re-engaged in March, 1999 and finally the services of

petitioner were verbally terminated in April, 1999. The petitioner completed 240 days in the

calendar year before his termination but he was not served any notice as required under section 25-

F of the Industrial Disputes Act, 1947. The petitioner stated that for his illegal termination, he had

filed an OA No. 3194/99 before the Administrative Tribunal which was disposed of vide order

dated 29.6.2004 vide which the respondent was directed to consider the applicant for engagement

as driver whenever vehicle would be available or post would be vacant. Thereafter, petitioner

requested the respondent to reengage him, but in vain. Petitioner also stated that in April, 2009 one

of the driver(s) of the respondent Shri Jarnail Singh got retired and petitioner requested the

respondent to engage him, but the respondent did not pay any heed to his request. Hence, petitioner

prayed that his termination order be declared null & void and he be reinstated in service with full

back wages along-with all consequential benefits.

The respondent contested the claim by filing a reply wherein preliminary objections

as to maintainability and want of provisions of Industrial Disputes were raised. On merits,

respondent admitted that the petitioner was engaged as a driver on 9.5.1995. As per respondent, the

petitioner was appointed for 80 days or till the joining of driver from General Administrative

Department who was on deputation. The respondent denied that the petitioner worked till February,

1999 without any break and he completed 240 days in all the calendar years. It was admitted that

petitioner was reengaged on 26.2.1999 and his services were dispensed with from April, 1999. The

departmental vehicle for which the petitioner was engaged was declared un-serviceable and

thereafter, auctioned. There was no justification to re-engage the petitioner as driver. The

respondent admitted that petitioner had filed an OA No. 3194/99 before Administrative Tribunal

wherein the respondent was only directed to consider the name of petitioner for re-engagement

whenever vehicle would be available or post would be vacant. The respondent stated that in 2007,

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new vehicle was purchased by the respondent when petitioner requested to reengage him but at the

same time he approached Hon’ble High Court for the execution of order dated 29.6.2004. The

respondent admitted that the drive namely Shri Jarnail Singh got retired on 30.4.2009. It was

further stated that the Administrative Tribunal had only directed the respondent to consider the

petitioner for re-engagement as driver but it was not incumbent upon the respondent to engage him.

Moreover, the post in the department was to be advertized. The name of petitioner would be

considered along-with other suitable candidates. Hence, the provisions of Industrial Disputes Act

were not applicable to the facts in hand. Consequently, respondent prayed for the dismissal of the

petition.

No rejoinder had filed by the petitioner. On the pleadings of the parties, the

following issues are framed.

Whether the petitioner worked as daily wager under the respondent for

continuous period of 240 days as alleged?

. .OPP.

Whether the services of petitioner were illegally terminated by the

respondent as alleged?

. .OPP.

Whether the petition is not maintainable?

. .OPR.

Whether the petition is hit by delay and latches?

. .OPR.

Whether the provisions of Industrial Disputes Act, 1947 are not attracted in

this case?

. .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.

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

under:

Issue No.1

Yes.

Issue No.2

Yes.

Issue No.3

No.

Issue No.4

No.

Issue No.5

No.

Relief.

Reference answered in affirmative as the termination of the petitioner is

illegal and unjustified per operative part of award.

Reasons for finding

Issue No. 1, 2 & 5.

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

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

considered opinion that the services of petitioner were illegally terminated by the respondent. The

record has established that the petitioner worked for continuous period of 280 days in a calendar

year prior to his retrenchment, therefore, the provisions of section 25-F of Industrial Disputes Act,

1947 are applicable. Before termination of services of petitioner, he was not served with any notice

under section 25-F by the respondent, as the result, the services of petitioner were illegally

terminated.

10.

From the pleadings of the parties, it is un-disputed that the petitioner was engaged as

a driver on daily wages by the respondent on 9.5.1995. It is also not in dispute that initially the

appointment of petitioner was for 80 days but the petitioner continued till February, 1999 when he

was re-engaged and his services were terminated in April, 1999. It has come in evidence that during

this period, notional break was given to the petitioner but this break was not make any difference as

far as the continuous period of 240 days in a calendar year is concerned for the purpose of section

25-F of Industrial Disputes Act, 1947. The petitioner has categorically deposed that he worked

from 1995 till 1999 continuously. This statement of petitioner is not disputed by the respondent as

is evident from the cross examination of petitioner. Moreover, the testimony of witness of

respondent RW-1 Ami Chand is also revealing that the petitioner was engaged in 1995 on daily

wages vide order Ex. RW-1/A and he worked till February, 1999 and on 26.2.1999, vide order RW-

1/B he was re-engaged and his services were terminated in April, 1999.

11.

The mandays chart of petitioner from 9.5.1995 to 30.4.1999 Ex. RW-1/D and the

summery of total number of days on which the petitioner worked from 9.5.1995 to April, 1999 Ex.

P-4 are specific evidence to show that prior to his termination in April, 1999, the petitioner had

worked for 240 days in a calendar year. As the result, the respondent was legally required to serve a

notice of one month under section 25-F of Industrial Disputes Act, 1947 upon the petitioner before

terminating his service or pay the wages for the period of notice along-with compensation to the

petitioner but no such steps were taken by the respondent. Consequently, the violation of section

25-F of Industrial Disputes Act, 1947 is proved. Hence, the termination of petitioner in April, 1999

is null & void and illegal.

12.

The record is further revealing that the petitioner had filed an OA No. 3194/1999

before the Administrative Tribunal which was disposed of vide order Ex. PW-1/C dated 29.6.2004

vide which the respondent was directed to consider the petitioner for re-engagement as drive

whenever vehicle is available or the post is vacant. The respondent was bound by said order. The

testimony of witness of respondent RW-1 Ami Chand has established that in 2007, a new vehicle

was purchased by the respondent which shows that there was requirement of a driver. At the same

time, he had deposed that on 30.7.2009, one Shri Jarnail Singh driver of respondent got retired.

That means there was vacancy of driver after 30.4.2009. On the top of it, Ex. P-3 is the copy of

letter dated 9.4.2009 from the respondent issued to the Principal Secretary (YSS) to he Government

of Himachal Pradesh with the request to fill-up the vacant post of driver in the Directorate of Youth

Services and Sports, H.P. Thus, there are sufficient evidence to establish that the re-engagement of

petitioner as a driver by the respondent is justified as the post is lying vacant and vehicle is also

available for the petitioner. The witness of respondent (RW-1) has admitted that after his

termination, the petitioner had been coming to the department with the request to reengage him.

13.

Hence, in the light of my aforesaid discussion, the petitioner is entitled to be

reinstated in service as his termination as daily wage driver in April, 1999 is illegal, null & void

and the termination orders are hereby set aside. The petitioner is also entitled to seniority and

continuity in service. However, he is not entitled for back wages as it has come in the testimony of

RW-1 Ami Chand that during the period in dispute, the petitioner had been driving taxi. That

means he was gainfully employed and did not remain idle.

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14.

Accordingly, for the aforesaid reasons, issues no. 1 & 2 are decided in favour of

petitioner whereas issue no.5 is decided against the respondent.

Issue No. 3

15.

From the careful perusal of record, there is nothing to suggest that the petition is not

maintainable in the present form. Hence, this issue is answered against the respondent.

Issue No. 4

16.

I do not find delay and latches in filing of present claim petition. Hence, this issue is

decided against the respondent.

Relief

For the reasons recorded hereinabove, the claim of the petitioner is allowed and the

reference is answered in affirmative as the termination of the services of the petitioner is illegal and

unjustified. Consequently, the petitioner is entitled to reinstatement in service with immediate

effect on the same terms and conditions with seniority and continuity 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 5th day of September, 2012 in the presence of

parties counsel.

By order,

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. 30 of 2007.

Instituted on. 5.6.2007.

Decided on 20.9.2012.

Lalita Jindal W/o Shri Mukesh Kumar Jindal R/o Kandaghat, C/o Shri Ravi Bhushan Gupta,

Bus Stand Kandaghat, District Solan, H.P.

…Petitioner.

Vs.

The Divisional Forest Officer, Solan, Forest Division Solan, H.P.

…Respondent.

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

For petitioner :

Shri S.S Parmar, Advocate.

For respondent :

Shri Jagdish Kanwar, Dy. DA.

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AWARD

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

“Whether the action of Divisional Forest Officer, Solan Forest Division Solan, H.P to

terminate the services of Smt. Lalita Jindal W/o Shri Mukesh Kumar Jindal, Ex. Lady

Forest Guard w.e.f. 30.4.1996 due to alleged her willful absence from duty and after

affording her ample opportunities to join her duties and complying the procedure under

Rule-5 of Central Civil Services (Temporary Services) Rules, 1965 is proper and

justified? If not, what relief of service benefits Smt., Lalita Jindal Ex- Lady Forest Guard

is entitled to ?”

The petitioner has filed the claim stating that she was appointed as Lady Forest

Guard in the Forest Department on 28.2.1986 and remained posted in Solan Forest Davison till

30.4.1996. She proceeded on leave w.e.f. 7.8.1995 to 9.8.1995 due to illness of her mother-in-law.

However, the petitioner could not join her duties and requested to extend her leave through

telegram. She came to join her duties on 1.5.1996 when her joining report was not accepted on the

ground that her services were already terminated. The respondent alleged that a notice was

published in the Tribune dated 23.3.1996 requiring petitioner to join her duties, failing which, the

services of petitioner would be terminated. The termination of petitioner was not in accordance

with law as her retrenchment was against the provisions of Industrial Disputes Act, 1947. Before

termination, no notice was served upon her. Hence, the provisions of section 25-F and 25-N of

Industrial Disputes Act, 1947 were violated. The petitioner further stated that after her termination,

the respondent employed other junior workmen, so, section 25-G of Industrial Disputes Act was

also violated. The petitioner was not given any opportunity of being heard before the termination of

her services as such the petitioner challenged her termination order and prayed that she be re-

engaged in service with all consequential service benefits.

The respondent contested the claim by filing a reply wherein preliminary objection

as to maintainability of the petitioner was raised stating that the petitioner was appointed as Forrest

Guard under R&P Rules and she was governed by the provisions of CCS conduct Rules. As such,

her appointment was not governed by the provisions of Industrial Disputes Act, 1947. On merits,

the respondent stated that the petitioner joined the services on 28.2.1986 as Lady Forest Guard and

she worked uptill 6.8.1995. Initially, she proceeded on three days casual leave w.e.f. 7.8.1995 to

9.8.1995 but did not join her duties on 10.8.1995 and applied for extension of leave for fifteen days

by sending a telegram. Again on 14.9.1995, the extension of leave was prayed for on the ground of

illness of her mother-in-law but did not join duties, consequently, a telegram was sent to her on

28.12.1995 asking her to join duties at once. The petitioner did not respond to the said telegram.

Finally, a notice was issued in the newspaper on 23.3.1995 asking the petitioner to join her duties.

Consequently, her services were terminated on 30.4.1996 following the due procedure under CCS

conduct Rules. The proper procedure was followed by the DFO under Rule-5 of CCS (Temporary

Service) Rule, 1965. The services of petitioner were not terminated under the provisions of

Industrial Disputes Act,1947, hence, there was no question of violation of any provisions of

Industrial Disputes Act, 1947. As the result, the respondent prayed for the dismissal of the petition.

No rejoinder had filed by the petitioner. On the pleadings of the parties, the

following issues are framed.

Whether the services of the petitioner have been terminated w.e.f. 30.4.1996

illegally and in an unjustified manner without complying with the procedure

under Rule-5 of Central Civil Services (Temporary Services) Rules, 1965 as

alleged?

. .OPP.

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If issue no.1 is proved in affirmative to what relief of service benefits the

petitioner is entitled to?

. .OPP.

Whether this petition is not maintainable as alleged in preliminary objection

No.1?

. .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 as well as written

arguments filed by the petitioner carefully.

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

under:

Issue No.1

Petition is not maintainable, hence, this issue is answered accordingly.

Issue No.2

Not entitled to any relief from this Court.

Issue No.3

Yes.

Relief.

Reference answered as per operative part of award.

Reasons for finding

Issue No.1, & 3.

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

Both the parties have led evidence in support of their respective contentions. The

petitioner has alleged that she was a workman and governed under the provisions of Industrial

Disputes Act, 1947, whereas on the other hand, respondent has alleged that the petitioner was a

regular government employee governed under the CCS Conduct Rules. So, the provisions of

Industrial Disputes were not applicable.

10.

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

substance in the preliminary objection taken by the respondent that the petition is not maintainable

on the simple ground that the services of petitioner were not governed by the provisions of

Industrial disputes Act, 1947.

11.

The petitioner has admitted that she was appointed as Lady Forest Guard in the

Forest Department on 28.2.1986. The appointment letter of petitioner is Ex. PW-5/A is revealing

that the petitioner was appointed as Forest Guard in the pay scale of Rs. 400-10-450/15-525/15-

600/20-660 in the Forest Division, Solan w.e.f. 28.2.1986. In pursuance of said order, the petitioner

joined, vide joining report Ex. R-1. Since, the petitioner was appointed as a regular Forest guard in

the Forest Divison, therefore, her services were governed under CCS Conduct Rules.

12.

On behalf of petitioner reliance was made on the copy of order passed by Hon’ble

High of H.P in CWP No. 1005/2005 dated 11.12.2006 Ex. PW-7. The back-ground of this order is

that the petitioner had served a demand notice which was sent to Labour-cum-Conciliation Officer

Solan Zone who vide his order dated 23.10.2004 had informed the petitioner that jurisdiction lies

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with H.P Administrative Tribunal, Shimla for regular appointed employees. The petitioner

challenged said order before Hon’ble High Court by filing a CWP No. 1005/2005 which was

disposed of vide order Ex. P-7 wherein the Hon’ble High Court passed the following orders:

“We find that the said order is wholly without jurisdiction. The Labour Officer-cum-

Conciliation Officer has no jurisdiction under the Industrial Disputes act to reject the

claim of a workman. His authority is only to try and reconcile the dispute between the

parties and in case the reconciliation is not possible, then he has to sent the matter to

the appropriate Government, i.e State Government, in the present case, for making a

reference to the Labour Court or Tribunal. It was not within the domain of Labour

Officer-cum-Conciliation Officer to reject the claim and direct the petitioner to

approach the Himachal Pradesh State Administrative Tribunal. In view of the above

discussion, the writ petition is allowed and the order of the Labour Officer-cum-

Conciliation Officer, Solan (Annexure P-6), is set aside. He is directed to send his

report to the State Government within six weeks from today, which shall then take

appropriate further action in accordance with law within eight weeks thereafter.”

13.

I have carefully perused the aforesaid order of Hon’ble High Court which is specific

to the effect that order of Labour-cum-Conciliation Officer was without jurisdiction. But, Hon’ble

High Court has nowhere held that the services of petitioner were governed by the provisions of

Industrial Disputes Act, 1947. Therefore, the aforesaid order passed by the Hon’ble High Court

does not give any jurisdiction to this Court to adjudicate the reference in question.

14.

Moreover, the reference in hand is clearly revealing that the services of petitioner

were terminated by divisional forest Officer, Solan w.e.f. 10.4.1996 under Rule-5 of CCS

(Temporary Service Rule, 1965). On behalf of respondent RW-1 Ramesh Negi appeared in the

witness box who in his cross-examination has stated that the services of petitioner were terminated

under CCS Conduct Rules.

15.

If CCS Conduct Rules are applicable to the services of petitioner, therefore, she was

a regular government employee and for the same at the relevant time, the jurisdiction lies with the

State Administrative Tribunal. Since, State Administrative Tribunal now stands abolished,

therefore, the petitioner has got remedy to approach the regular Civil Court or the Hon’ble High

Court for challenging her termination order.

16.

Since, the provisions of Industrial Disputes Act, 1947 are not applicable to the

present case, therefore, there is no occasion for this Court to see whether the provisions of section

25-F, 25-N and 25-G have been violated or not.

17.

In the light of my aforesaid discussion, the claim petition filed by the petitioner is

not maintainable as this Court has got no jurisdiction to answer the reference in question to the

effect whether the services of petitioner terminated under Rule-5 of CCS (Temporary service Rules,

1965) is proper and justified or not. Hence, issue no.3 is answered in affirmative whereas issue no.1

is decided accordingly.

Issue No. 2

18.

For the reasons to be recorded hereinabove, while deciding issues no. 1 & 3 , the

claim petition filed by the petitioner is not maintainable, hence, the petitioner is not entitled to any

service benefits from this Court. Accordingly, this issue is answered against the petitioner.

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Relief

For the reasons recorded hereinabove, the claim of the petitioner is dismissed being not

maintainable before this Court as the petitioner has got remedy to challenge her termination orders

before the regular Civil Court or Hon’ble High Court. In view of these findings, the reference is

answered accordingly. 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 20th day of September, 2012 in the presence of

parties counsel.

By order,

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. 130 of 2010.

Instituted on. 4.12.2010.

Decided on 12.9.2012.

Madan Thakur S/o Shri Raghubir Singh R/o Kapoor Niwas, House No. 4, Sector-3,

Parwanoo, District Solan, H.P.

…Petitioner.

Vs.

M/s Vaishnavi Cosmetics Industries Pvt. Ltd., Village Buranwala, Tehsil Kasali, District

Solan, H.P.

…Respondents.

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

For petitioner :

Shri A.K Sharma, AR.

For respondent :

Shri Rahul Majahan, Advocate.

AWARD

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

“Whether verbal termination of services of Shri Madan Thakur S/o Shri Raghuvir Singh

(Operator-cum-Supervisor) by the management of M/s Vaishnavi Cosmetics Industries

(P) Limited, Village Buranwala, Tehsil Kasauli, District Solan H.P w.e.f. 01.02.2010

without serving chargesheet, without holding enquiry and without complying with the

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

service benefits and relief the above named workman is entitled to? ”

The petitioner has filed the claim stating that he was engaged as Operator-cum-Fitter

by the respondent w.e.f. 3.12.2007. He completed more than 240 days continuously in a calendar

year before his illegal termination on 1.2.2010. No notice was served upon the petitioner and he

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was terminated without any charge-sheet as well as without holding any enquiry. As such, his

termination is against the provisions of Industrial Disputes act, 1947. The petitioner served a

demand notice upon the respondent but no settlement could be arrived at during conciliation

proceedings. Hence, petitioner filed the claim petition with the prayer that his termination be set

aside and he be reinstated in service with back wages along-with other consequential service

benefits.

In reply, the respondent took preliminary objections as to maintainability as well as

gainfully employee status of petitioner. On merits, the respondent stated that initially the petitioner

was employed as an Operator-cum-Fitter but he was subsequently promoted as Supervisor and he

was performing supervisory function. As the result, he was not a workman and there was no

industrial dispute under section 2(k) of Industrial Disputes Act, 1947. The respondent denied that

the petitioner had completed 240 days in a calendar year as a workman. The petitioner was

appointed as supervisor in toilet cleaner section where he did not perform his duties with

responsibilities. Thereafter, he was transferred to Cream Section and further transferred to Deo

Plant as supervisor. The petitioner was not interested in performing the job of supervisor and he

even threatened A.G.M Shri Gurmit Singh and insulted him. Consequently, petitioner was

terminated but he was not a workman, therefore, the provisions of Industrial Disputes Act, 1947 are

not applicable. Accordingly, respondent prayed for the dismissal of the petition.

No rejoinder was filed. On the pleadings of the parties, the following issues are

framed.

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

management w.e.f. 1.2.2010 is in violation of the provisions of 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 is not a workman?

. .OPR.

Whether the petitioner is gainfully employed?

. .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.

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

under:

Issue No.1

No.

Issue No.2

Not entitled to any relief.

Issue No.3

Yes.

Issue No.4

Become redundant.

Relief.

Reference answered as per award and no relief is granted to the petitioner.

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Reasons for finding

Issue No. 1 & 3.

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

In the light of arguments of both the parties as well as evidence on record, it stands

established that the petitioner was not terminated as a workman but he was performing the duties of

a supervisor as such, his termination was not as a workman. Consequently, petitioner is not entitled

for the protection of provisions of Industrial Disputes Act, 1947.

10.

It is settled law that only a workman is entitled for the protection of provisions of

Industrial Disputes Act, 1947 and he cannot be terminated or retrenched from service in violation

of provisions of Industrial Disputes Act, 1947.

11.

Thus, the main question for determination is whether the petitioner was terminated

as a workman or he was discharging the functions of a supervisor. Section 2(s) of Industrial

Disputes Act, 1947 defines workman and section 2(s)(iv) says that a workman does not include any

person who being employed in a supervisory capacity. That means a person discharging the

functions of supervisor is not a workman.

12.

The petitioner has alleged in his testimony that he was an Operator-cum-Fitter and

he was engaged on 3.12.2007 by the respondent. In his crossexamination, he initially denied that he

was engaged as a supervisor and also denied that he was a supervisor in toilet cleaner section.

Thereafter, he was transferred as supervisor to Cream section and further transferred to Deo Plant

but in his further crossexamination, he admitted that letter Ex. RA was issued to him by the

Assistant Manager (HR) of respondent. He also admitted that letter Ex. RB was written by him. To

my mind, both these documents are material and important evidence on record. The letter Ex. RA

was addressed to the petitioner wherein he has been addressed as supervisor Deo Plant and in letter

Ex. RB dated 28.12.2009, the petitioner has admitted himself to be a supervisor in Deo Plant. These

documents are sufficient to establish that in the year of 2009, the petitioner was supervisor in the

Deo Plant of respondent company.

13.

On behalf of respondent Shri Anil Kumar, Assistant Legal Manage stepped into the

witness box as RW-1 and deposed all the facts stated in the reply by the respondent. His testimony

is revealing that the petitioner was working as a supervisor and he was terminated on 1.1.2010. He

tendered in evidence documents Ex. RC to Ex. RJ. These documents are correspondence between

petitioner and the managers of the respondent company. These documents are revealing that

initially petitioner was Fitter-cum-Operator but subsequently he was promoted as supervisor.

Initially he was posed as supervisor in toilet cleaner branch then he was transferred to Cream

section and finally he was performing the duties of supervisor in Deo Plant.

14.

On behalf of petitioner, strong reliance was made on documents Ex. RM, Ex. RN,

Ex. RO which were admitted by RW-1 Shri Anil Kumar. These documents are only revealing that

in the years of 2007 and 2008, the petitioner was Fitter and Assistant Operator and thereafter he

was promoted to Operator liquid section of respondent company. But, these letters are not sufficient

to prove that the petitioner was a workman when he was terminated in the year of 2010.

15.

In the light of the documents discussed hereinabove, especially the admitted

document of petitioner Ex. RB wherein he has stated himself to be a supervisor in Deo Plant on

28.12.2009, I have no hesitation to hold that the petitioner was not a workman but he was

supervisor when his services were terminated. As the result, he is not entitled for the protection of

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provisions of Industrial Disputes Act, 1947 because he does not fall within the defination of

workman as defined under section 2(s)(iv) of Industrial Disputes act, 1947.

16.

Accordingly, for the aforesaid reasons issue no.1 is decided against the petitioner

whereas issue no.3 is decided in favour of respondent.

Issue No. 3.

17.

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

is not entitled to any relief as prayed for by him. Hence, this issue is decided against the petitioner.

Issue No. 4

18.

For the reasons recorded hereinabove while deciding aforesaid issues, the petitioner

is not a workman and he is not entitled to any relief from this Court, therefore, this issue has

become redundant, hence, decided accordingly.

Relief.

For the reasons recorded hereinabove, the claim of the petitioner is dismissed and the

reference is answered accordingly and as such the petitioner is not entitled to any service benefits

as prayed. 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 12th day of September, 2012 in the presence of

parties counsel.

By order,

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. 54 of 2009.

Instituted on. 10.8.2009.

Decided on 1.9.2012.

Ramesh Chand S/o Shri Dilmee Ram R/o Village Nohra, P.O Khagna, Tehsil Chopal,

District Shimla, H.P.

…Petitioner.

Vs.

1. State of HP through Secretary (PWD) to the Government of H.P, Shimla-2.

2. Engineer-in-Chief, HPPWD, US Club Shimla-1.

3. Executive Engineer, Chopal Division, HPPWD Chopal, District Shimla, H.P.

…Respondents

Reference under section 10 of the Industrial

Disputes Act, 1947.

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For petitioner : Shri P.P Chauhan, Advocate.

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 Ramesh Chand S/o Shri Dilmee Ram

by the Executive Engineer, HPPWD Division, Chopal District Shimla H.P w.e.f.

26.1.1999 on the allegation of misconduct and tempering of office record is proper and

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

the above workman is entitled to? ”

The petitioner has filed the claim stating that he was engaged on daily wages by the

respondents in September, 1991. The petitioner successfully completed 240 days in the calendar

year. He was not given work charge status as well as not regularised after the completion of eight

years. On 26.2.1999, the petitioner was served with one month’s notice of retrenchment of services

which was not in accordance with law. No enquiry was conducted against the petitioner and

principles of natural justice were not complied with. In fact, it was alleged that the petitioner had

tempered with the official record, for the same a criminal case was registered against him wherein

the petitioner was acquitted by the Ld. JMIC Chopal on 30.7.2002. As the result, the retrenchment

orders of petitioner dated 26.2.1999 were null and void. The retrenchment of petitioner was against

section 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947. Hence, petitioner prayed for set

aside the retrenchment and prayed that he be reinstated with full back wages and other

consequential service benefits.

3. The respondents contested the claim by filing a reply wherein preliminary objections

as to maintainability, delay and latches and cause of action were raised. On merits, respondents

admitted that the petitioner was engaged as a beldar in 1999. It was stated that the petitioner

completed 240 days w.e.f. 1992 to 1998 but in the year of 1991, he worked for 59 days whereas in

the year of 1999 he worked for 29 days.

Since, petitioner did not fulfill the criteria for regularization as per the policy of

Government, therefore, he was not regularised. Respondents further stated that the petitioner was

served with one month’s notice and he was retrenched w.e.f. 26.2.1999.

In fact the petitioner was deployed in the division office of Executive Engineer, PWD,

Chopal to assist the dealing hand. It was found that petitioner had tempered with the official record

with the malafide intention, so, the respondents were having no option but to terminate the services

of the petitioner. The petitioner was served with the notice as required under section 25-F of the

Industrial Disputes Act and he was also paid the compensation. The Auditor Chopal Sub Division

found the tempering of record by the petitioner and the matter was brought to the notice of

Assistant Engineer, Chopal Sub Division on 9.11.1998. Thereafter, the matter was referred to the

Superintending Engineer, 2nd Circle, HPPWD Shimla. Subsequently, the enquiry committee was

constituted and the enquiry was conducted against the petitioner. The enquiry committee submitted

its report to the Executive Engineer, Chopal on 24.11.1998 vide which the petitioner was found

guilty. Thereafter, the retrenchment notice was served upon the petitioner. During enquiry,

principles of natural justice were followed. Consequently, respondents prayed for the dismissal of

the claim petition.

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

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

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

1. Whether the termination of the services of the petitioner on the allegation of

misconduct and tempering of office record is unjustified?

OPP…

2. If issue no.1 is proved in affirmative, to what service benefits 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.

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

8. 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 in service with seniority and continuity along-with

back wages @ 25%.

Relief. Reference answered in negative as the termination of the petitioner is improper and

unjustified per operative part of award.

Reasons for finding.

Issue No.1.

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

considered opinion that the termination of services of petitioner by the respondents is not justified

for the reasons to be recorded hereinafter.

10. The evidence on record established that the petitioner was terminated from the service

on the allegation that he had tempered with the office record. This fact is not disputed by the

respondents as is evident from the reply. Ex. RC is the notice of retrenchment served upon the

petitioner by Executive Engineer, Chopal Division dated 6.2.1999 and it is revealing that one

month’s notice of retrenchment along-with compensation was given to the petitioner as required

under section 25-F of Industrial Disputes Act, 1947. But I am of the opinion that the termination of

petitioner does not fall within the definition of retrenchment.

11. As it is in not disputed that the petitioner was terminated from the service on account

of allegation of tempering with the office record. So, I am of the opinion that the termination of

petitioner was dismissal from the service and not retrenchment. Section 2(oo) of Industrial Disputes

Act, 1947 has defined retrenchment which means the termination by the employer of the services of

a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of

disciplinary action.

12. In the present case, it is the case of the respondents that an enquiry was conducted

against the petitioner wherein he was found guilty of tempering with the office record. That means

a disciplinary action was taken against the petitioner and as the result, he was terminated from

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service. Consequently, the termination of petitioner does not fall within the definition of

retrenchment as defined under section 2(oo) of Industrial Disputes Act, 1947.

13. If, the petitioner was not retrenched from the service by the respondents, then, there is

no application of section 25-F, 25-G and 25-H of Industrial Disputes Act, 1947. These provisions

of law are applicable in the case where a workman is retrenched by the employer. Therefore, even

if the notice Ex. RC is revealing the retrenchment of petitioner after complying with the provisions

of section 25-F of Industrial Disputes Act, to my mind it would not make any difference. As legally

speaking for the reasons discussed hereinabove the petitioner was not retrenched but dismissed

from service as the result of disciplinary action

14. The petitioner Ramesh Chand in his testimony as PW-1 has stated that regarding the

alleged misconduct to the charges of tempering with the office record, no proper enquiry was

conducted and principles of natural justice were violated. In view of reply filed by the respondents,

it is clear that enquiry committee was constituted by the XEN, HPPWD Chopal and enquiry

committee submitted its report Ex. PC/3 and held the petitioner liable for tempering with the office

record. This fact has also been deposed by RW-1 Shri T.S Chandel, Junior Engineer, HPPWD Sub

Division Chopal but there is nothing in his testimony that before enquiry by the committee, a show

cause notice was served upon the petitioner and he was afforded an opportunity to explain his

position. At the same time his testimony is also sufficient to show that only a preliminary enquiry

was conducted by the enquiry committee which submitted its report Ex. PC/3. No charge-sheet was

served upon the petitioner and no proper departmental enquiry was conducted against him. Hence,

in the absence of any regular enquiry, the services of petitioner could not be terminated. It has

caused a serious prejudice to the petitioner as he was not afforded due opportunity to defend

himself. So, certainly there is violation of principles of natural justice. Here, I am supported by law

laid down by Hon’ble Supreme Court of India in the matter of (2000) 3 S.C.C 588, in which it has

been held that the termination is punitive and if it is after preliminary enquiry and not on the basis

of regular enquiry then said termination is invalid. Similar view has been taken by Hon’ble High

Court of H.P in the matter of 1988 (2) Sim. L.C 46. Therefore, in the absence of proper regular

enquiry against the petitioner, his termination orders are not sustainable under law and liable to set

aside being not justified.

15. On behalf of respondents Ld. Dy. DA has relied upon the cross examination of

petitioner wherein he admitted that during enquiry he had admitted himself to be liable for the

tempering with the office record. But, to my mind this admission cannot be taken into account to

justify the termination order of the petitioner. As stated hereinabove, petitioner was not served any

chargesheet and before that no show cause notice was served upon him and on the top of it no

regular enquiry was conducted against the petitioner. Only on the basis of preliminary enquiry, the

petitioner cannot be thrown out of the service. Accordingly, this issue is answered in favour of the

petitioner.

Issue no.2

16. For the reasons to be recorded hereinabove while discussing issue no.1, the termination

orders of the petitioner are hereby set aside and the petitioner is entitled to reinstatement in service

with immediate effect on the same terms and conditions along-with seniority and continuity.

However, taking into account the facts and circumstance of the case as the petitioner was

terminated in the year, 1999, so, he is also held entitled to back wages @ 25%. Accordingly, this

issue is answered in favour of the petitioner.

Relief

For the reasons recorded hereinabove, the claim of the petitioner is allowed and the

reference is answered in negative as the termination of the services of the petitioner is improper and

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unjustified. Consequently, the petitioner is entitled to reinstatement in service with immediate

effect on the same terms and conditions with seniority and continuity along-with back wages @

25%. 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 1st day of September, 2012 in the presence of

parties counsel.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

___________

Ref. 38/2011.

Rajesh Kumar Vs. M/s GMP Technical solution, District Solan.

4.9.2012

Present:

None for the petitioner.

Ms. Kumud Thakur, Advocate vice csl. for respondent no.1.

Shri Tek Chand, Advocate for respondent no.2.

It is 10.35 AM. Be called again.

Presiding Judge,

Labour Court, Shimla.

Case called again.

Present:

None for the petitioner.

Ms. Kumud Thakur, Advocate vice csl. for respondent no.1.

Shri Tek Chand, Advocate for respondent no.2.

It is 12.25 PM but none appeared on behalf of the petitioner. Be called after lunch.

Presiding Judge,

LabourCourt, Shimla.

Case called after lunch.

Present:

None for the petitioner.

Ms. Kumud Thakur, Advocate vice csl. for respondent no.1.

Shri Tek Chand, Advocate for respondent no.2.

It is 2.30 PM. Case called again. Today the case was fixed for filing of claim by the

petitioner in support of his contention in order to answer the reference in question. Neither the

petitioner nor any other authorized person on his behalf is present.

There is no claim on behalf of the petitioner. So, petitioner could not lead any evidence in

support of his contention. Consequently, in the absence of any claim and evidence on behalf of

petitioner, he has miserably failed to show that his termination by The General Manager M/s GMP

Technical solution, Village Kurawala, P.O Mandhala, District Solan (Principal employer) and M/s

S.S Engineering, Near Bus Stand Baddi, District Solan, H.P (Contractor) w.e.f. 5.11.2008 is illegal

and unjustified. The following reference was received from the appropriate government for

adjudication:

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“Whether the termination of services of Shri Rajesh Kumar S/o Shri Ram Pratap

Village-Bada Godam, P.O Kherawali, District Panchkula, Haryana by i) The General

Manager M/s GMP Technical solution, Village Kurawala, P.O Mandhala, District

Solan (Principal employer) ii) M/s S.S Engineering, Near Bus Stand Baddi, District

Solan, H.P (Contractor) verbally w.e.f. 5.11.2008 is legal and justified? If not, what

amount of back wages, past service benefits and compensation the above worker is

entitled to from above named employers?”

In the absence of any evidence, this reference is answered in affirmative and as such the

petitioner is not entitled to any relief as the termination of petitioner Shri Rajesh Kumar by The

General Manager M/s GMP Technical solution, Village Kurawala, P.O Mandhala, District Solan

(Principal employer) and M/s S.S Engineering, Near Bus Stand Baddi, District Solan, H.P

(Contractor) w.e.f. 5.11.2008 is legal and justified. 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:

4th September, 2012.

Presiding Judge,

Labour Court,Shimla.

_________

Ref. 39 of 2008.

Dharam Chand Vs/ Hotel oberoi Clarks, Shimla.

7.9.2012

Present:

Petitioner in person.

Shri Rahul Mahajan, Advocate for respondent.

Today, petitioner entered into a settlement with the respondent. On behalf of respondent, he

received a cheque of Rs. 70,000/- (Rs. Seventy Thousand only) bearing cheque no. 176262 dated

6.9.2012 as full & final settlement. Statement of petitioner recorded wherein he has stated that he

received a cheque of Rs. 70,000/- (Rs. Seventy Thousand only) from the respondent and now there

was no dispute between the parties. As the result of said settlement, he prayed for withdraw the

claim petition.

In the light of aforesaid settlement arrived at between the parties, the claim petition stands

disposed of and the reference is answered accordingly. In the light of said settlement the award is

hereby passed. It is made clear that said settlement shall form part of this award. Let a copy of this

award be sent to the appropriate government for publication in the official gazette. File, after

completion, be consigned to records.

Announced.

7/9/2012.

Presiding Judge,

Labour Court, Shimla.

_________

Ref.266/2002

Sh Gulzar Singh V/s G.M. Eicher, Parwanoo.

20/9/2012

Present:

Petitioner in person with Shri Niranjan Verma, Advocate.

Shri Arun Kumar, Advocate for respondent no.1

Shri Rakesh Kumar, Advocate for respondent no.2.

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Today, the petitioner and respondent no.2 i.e M/s Eicher Demn, Parwanoo entered into a

settlement in this reference vide which respondent no.2 (M/s Eicher Demn, Parwanoo) agreed to

pay lump-sum amount of Rs. 4.70 lakhs (Rs. Four Lakhs Seventy Thousand only), to the petitioner

as full & final settlement between the parties. This offer is accepted by the petitioner. Statements of

Ld. Counsel for respondent no.2 and petitioner to this effect were recorded. Petitioner has also

stated that in view of said settlement he has got no claim left towards the respondents in any

manner whatsoever.

In the light of aforesaid settlement this claim petition is decided and the reference is

answered accordingly. It is made clear that the respondent no.2 (M/s Eicher Demn, Parwanoo) shall

make the payment of aforesaid amount of Rs. 4.70 lakhs (Rs. Four Lakhs Seventy Thousand only)

to the petitioner on or before 31/10/2012 failing which petitioner shall be entitled to the interest @

9% per annum. 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.

20/9/2012.

Presiding Judge,

Labour Court, Shimla.

_________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL

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

Ref No. 61 of 2008.

Instituted on. 17.11.2008.

Decided on 6.9.2012.

Roshan Lal S/o Shri Humbi Ram R/o village Kuki, P.O Darkoli, Tehsil Rampur Bushahr, District

Shimla, H.P.

…Petitioner.

Vs.

1. The Secretary, HPSEB.

2. Executive Engineer, Electrical Division HPSEB Rampur Bushahr, District Shimla,

H.P.

…Respondents

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

For petitioner :

Shri Lavenesh Kanwar, Advocate.

For respondent :

Shri Chandan Goel, Advocate.

AWARD

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

1. “Whether action of the employer i.e The Executive Engineer, Electrical Division

HPSEB Rampur Bushahr, District Solan, H.P not to give workcharge status to Shri

Roshan Lal s/o Shri Humbi Ram but to give work charge status to namely S/Shri

Mangat Ram, Kedar Singh, Bhajan Dass, Prakash Singh, Prakesh Chand, Jaswant

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Singh, Lachhmi Dass, Joginder Singh, Roshan Lal and Babu Ram who are junior to

workman Shri Roshan Lal is proper and justified? If not, to what relief and

compensation the above worker is entitled to ? ”

2. “Whether action of the employer i.e The Executive Engineer, Electrical Division

HPSEB Rampur Bushahr, District Solan, H.P to again terminate the services of

Shri Roshan Lal S/o Shri Humbi Ram vide notice no. HPSEB/RED-E-19(A)/08-09-

3493-98 dated 25.10.1998 without paying any retrenchment compensation as

provided under Industrial Disputes Act, 1947 is proper and justified? If not, to what

relief of service benefits including seniority and compensation the above worker is

entitled to?”

2. The petitioner has filed the claim stating that he was engaged as a beldar in the year of

1992 in HPSEB Sub Division Taklech, District Shimla under Rampur Bushahr Division. The

petitioner continuously worked and completed 240 days in each calendar year till 1998 when he

was disengaged from services on 25.10.1998. Thereafter, the respondents engaged new persons.

Feeling aggrieved and dissatisfied with his disengagement, the petitioner preferred OA No. 2812/99

before the Administrative Tribunal wherein interim relief was granted to the petitioner and he was

allowed to continue. The O.A. was accepted by Administrative Tribunal vide order dated 9.11.2001

and it was held that the petitioner was illegally disengaged by the respondents and respondents

were directed to re-engage the petitioner. However, the respondent preferred civil writ petition no.

766/2002 before the Hon’ble High Court which was accepted vide judgment dated 22.4.2008 and

order of State Administrative Tribunal dated 9.11.2001 was set aside on the ground that State

Administrative Tribunal was having no jurisdiction to decide the case. However, Hon’ble High

Court directed if industrial dispute was raised by the petitioner, same would be considered by the

Labour Officer and it would be referred to State Government within six months. In pursuance of

the said order, the petitioner sent a demand notice to the Labour and Conciliation Officer and

consequently the reference was received in this Court. The record is revealing that in the original

reference the date of disengagement of petitioner was wrongly mentioned as 25.7.2008 but by the

order of Hon’ble High Court said date was corrected to be 25.10.1998. The petitioner has stated

that after his engagement in 1992, other persons were also engaged by the respondents but they

were not disengaged on 25.10.1998. So, the respondent violated the principles of first come last go.

The junior persons were allowed to continue in service. The petitioner stated that S/Shri Mangat

Ram, Kedar Singh, Bhajan Ram, Prakash Chand, one another Prakesh Chand joined as beldar in

1994 whereas Shri Jaswant Singh joined in 1995 and Shri Lachhamn Dass joined in 1996 and they

were given work charge status in the years of 2002 and 2007 respectively. Hence, petitioner prayed

that his termination order dated 25.10.1998 be declared null & void against the provisions of

section 25-G and 25-H of Industrial Disputes Act, 1947 and petitioner further prayed that he was

also entitled to be regularised and given work charge status as per state government policy. Hence,

the present claim petition was filed.

3. In reply respondents took preliminary objections as to maintainability, estopple and

limitation. On merits, the respondents admitted that the petitioner was engaged on 17.3.1992 and he

was disengaged on 25.10.1998. The respondents stated that during this period, petitioner never

completed 240 days in a calendar year. The respondents admitted that petitioner filed an OA before

State Administrative Tribunal which was decided on 9.11.2001 and thereafter, writ was filed before

the Hon’ble High Court whch was allowed and the order of State Administrative Tribunal dated

9.11.2001 was set aside. The respondents stated that the petitioner remained irregular and absent

from duties whereas other persons engaged by the respondents were sincere and regular and they

completed 240 days in a calendar year, therefore, as per the government policy, they were given

work charge status. Consequently, respondents prayed for the dismissal of the claim petition.

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

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

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

Whether the action of respondent no.2 in not giving work charge status to the

petitioner is not proper and justified as alleged?

OPP…

Whether the termination of the services of the petitioner as per order dated

25.10.1998 is illegal and unjustified being in contravention of the provisions

of the Industrial Disputes Act, 1947 as alleged?

OPP…

If issue no.1 & 2 or one of them is proved, to what service benefits the

petitioner is entitled to?

OPP…

Whether the petitioner is stopped from filing this claim petition. OPR. . .

Whether the petition is time barred?

OPR…

Relief.

6. 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.

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

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

under:

Issue No.1

Partly yes.

Issue No.2

Yes.

Issue No.3.

Entitled to reinstatement in service with seniority and continuity but without

back wages. Further, respondent no.2 is directed to consider the case of the

petitioner for workcharge status as per the criteria of Government policy.

Issue No.4

No.

Issue No.5

No.

Relief.

Reference answered in negative as the termination of the petitioner is

improper and unjustified per operative part of award.

Reasons for finding

Issue no.1 & 2.

9. 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 carefully, I am of the

considered opinion that the termination of services of petitioner w.e.f. 25.10.1998 by the

respondents is illegal and unjustified being in contravention of section 25-G and 25-H of the

Industrial Disputes Act, 1947.

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

as a beldar on daily wages by the respondents in 1992 and his services were terminated on

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25.10.1998. Although, the petitioner has alleged that till 25.10.1998, he completed 240 days in a

calendar year but in support of this plea, I do not find sufficient evidence on record. On behalf of

respondents, it has been stated that the petitioner was habitual absentee and he used to leave the job

in between and due to this reason, he could not complete 240 days in a calendar year. There is

nothing specific in the testimony of petitioner who appeared in the witness box as PW-1 to show

that he had completed 240 days in a calendar year.

12. The petitioner has examined PW-2 Surinder Kumar, Junior Engineer, HPSEB Rampur

who has admitted in his cross examination that from 17.3.1992 to 24.9.1998, the petitioner did not

complete 240 days in a calendar year. This witness produced in evidence the mandays chart Ex. PX

which is proving this fact that during aforesaid period, petitioner did not completed 240 days in a

calendar year. As the result, there was no legal requirement to serve a notice under section 25-F

before the termination of services of petitioner. However, at the same time, it has come in evidence

that after the engagement of petitioner in 1992, respondents engaged other persons also on daily

wages. The petitioner has deposed this fact and further PW-2 Surinder Kumar produced in evidence

the muster rolls Ex. PW-2/A to Ex. PW-2/z-127. These muster rolls are sufficient proof to establish

that after 1992 and till 25.10.1998, the respondents engaged other workmen on daily wages. In para

8 of the reply, the respondents have stated that the persons who were engaged after petitioner

remained sincere and did not remain absent from duties and completed 240 days in a calendar year.

That means there is a specific admission on the part of respondents that after the dis-engagement of

petitioner other persons were also engaged by them.

13. Thus, on 25.10.1998 when the services of petitioner were terminated, the respondents

should have retrenched junior persons to the petitioner as per the principles of first come last go

which is envisaged under section 25-G of Industrial Disputes Act, 1947. Further, the muster rolls

Ex. PW-2/z-88 to Ex. PW-2/z-127 are sufficient proof to establish that after 25.10.1998, the work

was available with the respondents and for the same respondents issued muster rolls after

25.10.1998 and engaged other persons on daily wages. But, during this period the petitioner was

not reengaged. Hence, there is violation of section 25-H of Industrial Disputes Act, 1947 which

says that 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. In this case, no opportunity was given to the petitioner, instead of that other persons

were engaged after 25.10.1998 by the respondents. PW-2, Surinder Kumar has also categorically

deposed that no notice was served upon the petitioner to come back to his duties.

14. Hence, in the light of my aforesaid discussion, it stands established that the termination

order of petitioner w.e.f. 25.10.1998 are against the provisions of section 25-G and 25-H of

Industrial Disputes Act, 1947 and consequently, said order is hereby declared null & void being

improper and unjustified.

15. Although, the petitioner had filed an OA no. 2812/1999 challenging his retrenchment

orders before State Administrative Tribunal and he was granted relief of re-engagement vide order

dated 9.11.2001 but at the same time, it is also not disputed fact that the respondents preferred

CWP No. 766/2002 before the Hon’ble High Court which was accepted vide order dated 22.4.2008

and order passed by State Administrative Tribunal dated 9.1.2001 was set aside on the ground of

lack of jurisdiction and it was directed that if industrial dispute is raised by the petitioner and a

reference is sent to the Labour Court, then, it would be decided accordingly. As the result, this

Court received the reference and petitioner filed his claim to set aside his termination orders.

16. For the aforesaid reasons, the petitioner is entitled to be reinstated in service with

seniority and continuity w.e.f. 25.10.1998. The petitioner was terminated on 25.10.1998, therefore,

since then about fourteen years have elapsed, therefore, it cannot be believed that during this

period, petitioner remained without any job or he was not employed gainfully. I am also of the

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opinion that reinstatement with back wages should not be a rule. The back wages can be granted

only in special cases. Taking into account facts and circumstances of the present case, the petitioner

is not entitled to back wages.

17. From the pleadings as well as statements of petitioner and PW-2 Surender Kumar, it is

clear that the junior persons to petitioner namely Mangat Ram, Kedar Singh, Darshan Lal, Bhajan

Ram, Prakash Chand, another Prakash Chand, Jaswant Singh, Laxmi Dass, Joginder Singh etc.

were engaged subsequently and they were given work charge status and regularised by the

respondents. So, petitioner has prayed that he be also given work-charge status. On behalf of

respondents, reliance was made on the orders of State Administrative Tribunal Ex. R-1 to Ex. R-11

vide which the other junior persons were regularised.

18. I have carefully gone through the aforesaid orders Ex. R-1 to Ex. R-11. All these

orders were passed on 19.11.1999 and these orders are revealing that the petitioners (other junior

workmen) were re-engaged and respondents undertook not to disengage them except in due process

of law. There is nothing in the aforesaid orders of State Administrative Tribunal Ex. R-1 to Ex. R11

that the other junior persons were given work-charge status. However, from the perusal of the reply

filed by the respondents, it is not disputed that the work-charge status was given to the other junior

persons who were engaged after the petitioner. The reply filed by the respondent is revealing that

the work-charge status was conferred upon those junior workers who fulfilled the criteria as per

State Government Policy.

19. So, in view of aforesaid facts, I am of the opinion that the petitioner is only to the

work-charge status if he fulfills the criteria of State Government policy. The case of the petitioner

would be considered for work-charge status after re-engaging him by the order of this Court w.e.f.

25.10.1998

20. Accordingly, in the light of my aforesaid discussion, it cannot be strictly held that by

refusing the work-charge status to the petitioner is improper and unjustified. However, respondent

no.2 is directed to consider the case of the petitioner for work-charge status as per the criteria of

Government policy. As the result, for the aforesaid reasons issue no.1 is partly decided in

affirmative whereas issue no.2 is decided in favour of petitioner.

Issue No.3

21. For the reasons to be recorded hereinabove while discussing issue no.1 and 2, the

petitioner is ordered to be reinstated in service w.e.f. 25.10.1998 with seniority and continuity in

service. Further, the respondent no.2 is directed to consider the case of petitioner for work-charge

status in accordance with law as per the criteria of Government Policy. Hence, this issue is decided

in favour of petitioner.

Issue No.4

22. I do not find any evidence on behalf of respondents to show that petitioner is stopped

from filing the present claim. Hence, this issue is decided against the respondent.

Issue No.5

23. The present reference was received in the Court in November, 2008 after the decision

of the Hon’ble High Court dated 22.4.2008 passed in CWP No. 766/2002 wherein it was directed

that if the petitioner would raise an industrial dispute then it would be decided by the Labour court.

Accordingly, under these circumstances, the present petition is not time barred. Hence, this issue is

decided against the respondents.

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Relief

For the reasons recorded hereinabove, the claim of the petitioner is allowed and the

petitioner is ordered to be reinstated in service with seniority and continuity w.e.f. 25.10.1998 but

without back wages. Further, respondent no. 2 is directed to consider the case of the petitioner for

work-charge status as per the criteria of Government policy and as such the reference is answered

accordingly. 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 6th day of September, 2012 in the presence of

parties counsel.

By order,

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. 57 of 2007.

Instituted on. 4.7.2007.

Decided on 6.9.2012.

M/s Associated Ancillaries Workers Union Shed No. 2 to 4, Sector-II, Parwanoo, Solan,

H.P through its President/General Secretary.

…Petitioner.

Vs.

M/s Associated Ancillaries, Shed No. 1 to 4, Sector-II, Parwanoo, District Solan, H.P

through its Manager.

…Respondent

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

For petitioner :

Shri R.K Khidta, Advocate.

For respondent :

Shri V.K Gupta, AR.

AWARD

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

“Whether the action of the management of M/s Associated Ancillaries, Shed No. 1

to 4, Sector-II, Parwanoo, District Solan to declare lock-out in their factory w.e.f.

30.4.2007 while the conciliation proceedings were going on before the Labour

Inspector-cum Conciliation Officer, Parwanoo, Dsitrict Solan, HP and next date of

conciliation meeting was fixed on 9.5.2007 regarding implementation of new settlement

which was likely to be effective w.e.f. June, 2006 (Copy of demand notice dated

29.5.2006 enclosed) without complying the provisions of the Industrial Disputes Act,

1947 is proper and justified? If not, what relief of service benefits and amount of

compensation the affective workmen (list enclosed) are entitled from the above

management?”

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The claim has been filed by the union of twenty four workers of respondent company.

It is stated in the claim petition that the respondent company has been doing its work for the last

more than 30 years at Parwanoo and the workers of union have been working for the last 11 to 30

years. The petitioner union submitted the demand notice to the respondent management on

27.5.2006, copy of which was also sent to the Labour Inspector-cum-Conciliation Officer,

Parwanoo. During the conciliation proceedings on 28.2.2007, on the some of the demands an

agreement was arrived at between the parties to increase the shoe allowances from Rs. 600/- to Rs.

700/- per year and it was also agreed that Rs. 800/- per year would be given to each worker as gift.

However, during the pendency of the conciliation proceedings, the respondent issued a public

notice dated 30.4.2007 to the effect that the factory was closed. After receiving said public notice,

the petitioner union submitted representations against the same before Labour Commissioner,

Shimla. The respondent put lock on the factory gate and did not allow the workers to go inside. The

Conciliation Officer, Parwanoo fixed the next date for conciliation on 9.5.2007. The respondent

management filed its reply before Conciliation Officer which was objected to by the petitioner. The

respondent factory was illegally closed without any reason whereas there was no financial loss.

Since, the conciliation proceedings were pending, therefore, the respondent could not have closed

the factory which resulted into the retrenchment of the workers which was against section 33 of

Industrial Disputes Act, 1947 as no prior permission was obtained by the respondent from the

concerned authority. From 1985 to 2007, the value of the product manufactured by the respondent

had been increasing, so, there was no justification to close the respondent factory. Thus, the

management was earning profit every year. The petitioner felt aggrieved by the action of the

respondent, filed a writ petition before the Hon’ble High Court which was disposed of and

consequently, the present reference was received by this Court. Hence, the present claim petition

with the prayer to set aside the lock-out orders of the respondent factory dated 30.4.2007 by

declaring the same null and void and the workers of petitioner union be allowed to work on the

same post as they were working on 30.4.2007 with full back wages.

3. The claim petition was contested by the respondent by filing a reply wherein they took

preliminary objections as to locus standi, financial constraints of the respondent management for

closer and vague nature of the reference. On merits, the respondent did not dispute that the workers

of the petitioner union were working in the factory of respondent. It was also not disputed that

earlier a demand notice was pending before Conciliation Officer, Parwanoo wherein a settlement

dated 28.2.2007 was arrived at between the parties. However, it was stated that the settlement was

not the result of demand notice but it was as the result of mutual consent of both the parties. It was

stated that there was no lock-out of the respondent factory but in-fact the factory was closed vide

public notice dated 30.4.2007 due to financial constraints and all the workers were offered all the

dues and benefits which they refused to receive. The respondent had also sent copy of notice along

with cheques consisting of all dues of the workers through registered post which they refused to

receive. The closer of respondent factory was not illegal but it was done in accordance with law. At

that time, no demand notice was pending, so, there was no application of section 33 of Industrial

Disputes Act, 1947. The subsequent conciliation proceedings fixed by Conciliation Officer were

illegal. The petitioner could not show how the closer notice was illegal. Consequently, respondent

prayed for the dismissal of the petition.

4. Rejoinder was filed by the petitioner union wherein all the preliminary objections

taken by the respondent were denied and further the averments already made in the claim petition

were reasserted.

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

1. Whether the action of the management of respondent to declare lock-out in its factory

w.e.f. 30.4.2007 while the conciliation proceedings were going on before the Labour

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Inspector cum-Conciliation Officer, Parwanoo without complying the provisions of

Industrial Disputes Act, 1947 is improper and unjustified as alleged? OPP…

If issue no.1 is proved, to what relief the petitioners are entitled to?

OPP…

3. Whether the petitioners have no locus standi to raise any claim and to seek any relief as

alleged?

OPR…

Whether it was closer and not the lock-out of the respondent? If so, its effect? OPR…

5. Relief.

6. 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.

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

8. 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 along-with

back wages @ 25%.

Issue No.3

No.

Issue No.4

It was intended closer but liable to set aside.

Relief.

Reference answered in negative as the action of the respondent is improper

and unjustified per operative part of award.

Reasons for finding

Issue No.1 and 4.

9. 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 carefully, I am of the

considered opinion that the respondent had intended to close its factory w.e.f. 30.4.2007 by issuing

a public notice Ex. PD dated 30.4.2007. For the reasons to be recorded hereinafter, said intended

closer of the factory is not justified, consequently, it is hereby declared illegal.

11. There is no dispute that petitioner is the union of twenty four workers working in the

factory of respondent. The respondent has intended to close down its factory w.e.f. 30.4.2007 vide

public notice Ex. PD. On the other hand, the petitioner union has alleged that the respondent had

intended to lock-out its factory w.e.f. 30.4.2007. Section 22(2) of Industrial Disputes Act, 1947

deals with the provisions of lock-outs and it reads as under:

“No employer carrying on any public utility service shall lock-out any of his workmen—

(a) without giving them notice of lock-out as hereinafter provided, within six weeks before

locking out; or

(b) within fourteen days of giving such notice; or

(d) during the pendency of any conciliation proceedings before a conciliation officer and

seven days after the conclusion of such proceedings”.

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12. Section 2(l) defines lock-outs which means temporary closing of a place of

employment, or the suspension of work or the refusal by an employer to continue to employ any

number of persons employed by him.

13. But, from the perusal of the public notice Ex. PD, it is clear that the respondent

management did not intend to lock-out the factory but it intended to close the same permanently.

As the result, the provisions relating to lock-outs envisaged in Industrial Disputes Act, 1947 are not

applicable.

14. Now, we have to see whether the public notice Ex. PD amounts to legal closer of the

respondent factory. Section 25-FFA of Industrial Disputes Act, 1947 makes it obligatory upon the

employer to serve at least sixty days prior notice on the intended closer stating clearly the reasons

for intended closer. Further, it is stated in section 25-FFA that the aforesaid provisions are not

applied to an undertaking in which less than fifty workmen are employed. The list of workman

attached with the reference is revealing that at the relevant time, twenty four workers were working

in the factory of respondent. So, the number of workers is less than fifty, therefore, the aforesaid

provisions contained under section 25-FFA of sixty days notice is not applicable to the present

case. However, at the same time in case of closer, there is a provision of compensation to the

workmen as envisaged under section 25-FFF of Industrial Disputes Act, 1947 which reads as

under:

“Compensation to workmen in case of closing down of undertakings.- (1) Where an

undertaking is closed down for any reason whatsoever, every workman who has been in

continuous service for not less than one year in that undertaking immediately before such

closure shall, subject to the provisions of sub-section (2), be entitled to notice and

compensation in accordance with the provisions of section 25F, as if the workman had been

retrenched:

Provided that where the undertaking is closed down on account of unavoidable

circumstances beyond the control of the employer, the compensation to be paid to the workman

under clause (b) of section 25F shall not exceed his average pay for three months”.

15. From the careful perusal of notice Ex. PD, it stands established that at the time of

intended closer, the respondent did not comply with the aforesaid provisions of section 25-FFF.

The respondent management was to serve separate notice to each worker in accordance with the

provisions of section 25-F which says that no workman shall be retrenched until he has been given

one month’s notice in writing indicating he reasons for retrenchment or the workman has been paid

in lieu of such notice, wages for the period of notice. This provision is applicable to a workman

who has been in continuous service for not less than one year under the employer. In our case, there

is no dispute that all the workers of petitioner union have completed continuous service of one year

prior to the notice Ex. PD dated 30.4.2007. Since, no notice under section 25-F was served upon

each of the worker, therefore, the retrenchment of workers is illegal and the public notice Ex. PD

dated 30.4.2007 is also declared null and void and by virtue of same the respondent factory cannot

be said to have been closed in accordance with law.

16. On behalf of petitioner Juggi Lal (one of the worker of petitioner union) stepped into

the witness box as PW-1 and has deposed all the facts stated in claim petition. He has stated that

conciliation proceedings were pending before Labour Inspector-cum-Conciliation Officer

Parwanoo wherein conciliation was arrived at partly vide Ex. PH and consequently incentives Ex.

PJ were given to the workers. His testimony is revealing that earlier the petitioner union has filed a

writ petitioner before the Hon’ble High Court which was disposed of vide order Ex. PO dated

30.5.2008 wherein Hon’ble High Court had given liberty to the workers of petitioner union to

agitate the matter before this Court.

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17. Petitioner also examined one other witness Smt. Hem Lata from the office of Labour

Commissioner, Shimla, who proved the documents Ex. PK-1 to Ex. PK- 7 which are the

applications filed by the respondent to the Labour Commissioner for the renewal of factory

lincence for the year 1985, 1990, 1995, 2000, 2005, 2006 and 2007. She has further stated that no

application was received from the respondent to close down the concern/factory. PW-3, Shyam

Sunder is the another witness of the petitioner who is President of the petitioner union and he has

deposed that a demand ntioce was served upon the respondent. He has further stated that a

compromise was arrived at between the parties regarding some of the demands. But his testimony

is nowhere revealing that the entire dispute was amicably settled before the Conciliation Officer.

18. The careful scrutiny of statement of RW-1 Shri M.P Chawla the witness of respondent

is revealing that vide notice Ex. PD dated 30.4.2007, the factory was closed and the management

tendered all the dues and benefits to the workers which they refused to receive. He tendered in

evidence the sealed envelopes (twenty four in number) annexure RM-1/1 to RM-1/24.

19. As discussed hereinabove, it was mandatory upon the respondent to serve one month’s

notice or wages of one month in lieu of the notice prior to the closer. The testimony of RW-1 is

revealing that the factory was closed on 30.4.2007 and on the same day the due and benefits were

sent to the workers through registered post i.e on 30.4.2007 itself, but as per section 25-FFF the

notice was to be served upon the workman before the closer and not at the time of closer or after

the closer. As such, the compliance of section 25-FFF is not proved.

20. RW-1 Shri M.P Chawla has tented into evidence all the relevant documents Ex. R-1/A

to Ex. R-1/C, Ex. PD, Ex. R-2/A to Ex. R-2/G, Ex. RH, Ex. RA to Ex. RL and the aforementioned

envelops Ex. RM-1/1 to Ex. RM-1/24. All these documents would not justify the closer of the

respondent factory.

21. The cross-examination of Shri M.P Chawla is relevant wherein he has stated that the

shed of the respondent has been allotted to Anchemco (the other concern). At the same time he has

deposed that he did not bring any record about the surrender of shed by the respondent to the state

government and its further allotment to M/s Anchemco. He has further admitted that the electricity

bills Ex. PX-1 to Ex. PX-6 are the copies dated 26.4.2010, 25.5.2010, 27.7.2010, 28.7.2010 and

27.9.2010 which have been issued in the name of respondent company. That means respondent

factory is still running even after the date of issuance of public notice Ex. PD dated 30.4.2007. This

witness has also stated that the respondent unit has been working since 1979 and he has further

admitted that the production is going on in the aforesaid shed. He has also admitted that the

company has applied for the renewal of licence vide applications Ex. PK-1 to Ex. PK-7. In his

cross-examination, this witness has further admitted that the respondent company is a profitable

unit.

22. Thus, taking into account the entire testimony of RW-1, it is clear that the respondent

company is not closed but it is still running and doing profitable business, so, there is no question

of closer as alleged by the respondent. To my mind, vide notice Ex. PD dated 30..2007, the

respondent had intended to get-rid-off the workers of petitioner union and this action of respondent

is not justified.

23. It has also come in evidence that the conciliation proceedings were going on before

Conciliation Officer, Parwanoo when notice Ex. PD was issued on 30.4.2007. RW-1 Shri M.P

Chawla has admitted that the next date of conciliation was fixed for 9.5.2007. If, upon the demand

notice of the petitioner, conciliation proceedings were pending, therefore, the respondent could not

have retrenched the workmen and could not have closed the factory without the prior

permission/approval of the concerned authority under section 33 of Industrial Disputes Act, 1947

which reads as under:

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“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.”

24. Consequently, in the light of my aforesaid discussion, the notice Ex. PD dated

30.4.2007 is hereby declared null and void being against the provisions of Industrial Disputes Act,

1947, hence, the closer of the factory by the respondent is not justified. Although, the petitioner

union has termed it as a lock-out but the terminology of “lock-out or closer” would not make any

difference as far as the right of the workmen of petitioner union is concerned. The workmen of

petitioner union cannot be thrown out from the service by the respondent on the pretext of notice

Ex. PD which has been declared null & void. Hence, issue no.1 is decided in favour of the

petitioner and issue no.4 is decided accordingly.

Issue no.2

25. For the reasons to be recorded hereinabove while discussing aforesaid issues, the

notice Ex. PD dated 30.4.2007 has been declared null & void. Consequently, the workmen of the

petitioner union cannot be thrown out or retrenched by the respondent company and they are

entitled to be reinstated in service with immediate effect. It has come in evidence that some of the

workers have arrived at settlement with the respondent management under section 18 of Industrial

Disputes Act, 1947, so, the workers who have finally settled with the respondent under section 18

of Industrial Disputes Act are not entitled to any relief and as such they are not entitled to be

reinstated or to get any other relief from the respondent. However, the remaining workers of

petitioner union are entitled to be reinstated in service with immediate effect with continuity and

seniority along-with back wages @ 25%. Hence, this issue is answered in favour of petitioner

union.

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Issue no.3

26. The petitioner union has got locus-standi to file the present claim petition and to seek

the relief on behalf of the workmen as it is the union of the workmen and the claim petition has

been filed through its President/General Secretary. Consequently, this issue is decided against the

respondent.

Relief

For the reasons recorded hereinabove, the claim of the petitioner is allowed and the

reference is answered accordingly and as such the notice Ex. PD dated 30.4.2007 has been declared

null & void. Consequently, the workmen of the petitioner union cannot be thrown out or retrenched

by the respondent company and they are entitled to be reinstated in service with immediate effect.

It has come in evidence that some of the workers have arrived at settlement with the respondent

management under section 18 of Industrial Disputes Act, 1947, so, the workers who have finally

settled with the respondent under section 18 of Industrial Disputes Act are not entitled to any relief

and as such they are not entitled to be reinstated or to get any other relief from the respondent.

However, the remaining workers of petitioner union are entitled to be reinstated in service with

immediate effect with continuity and seniority along-with back wages @ 25%. 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 6th day of September, 2012 in the presence of

parties counsel.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

_________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171 001

NOTIFICATION

Shimla, the 18th October, 2012

No. HHC/GAZ/14-217/95-1.—Hon’ble the Chief Justice has been pleased to grant six

days’ earned leave w.e.f. 29.10.2012 to 3.11.2012 with permission to prefix Dussehra holidays and

Sunday falling from 21.10.2012 to 28.10.2012 and to suffix Sunday falling on 4.11.2012 in favour

of Shri Rakesh Kumar Chaudhary, Presiding Officer, Fast Track Court, Shimla, H.P.

Certified that Shri Rakesh Kumar Chaudhary is likely to join the same post and at the same

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

Also certified that Shri Rakesh Kumar Chaudhary would have continued to hold the same

post of Presiding Officer, Fast Track Court, Shimla, H.P., but for his proceeding on leave for the

above period.

By order,

Sd/-

Registrar General.

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HIGH COURT OF HIMACHAL PRADESH AT SHIML-171001

NOTIFICATION

Shimla, the 18th October, 2012

No. HHC/GAZ/14-315/2010.—Hon’ble the Chief Justice has been pleased to grant ex-post

facto sanction of two days’ commuted leave for 29.9.2012 and 30.9.2012 in favour of Shri Nikhil

Aggarwal, Civil Judge (Junior Division)-cum-JMIC (VII), Shimla H.P.

Certified that Shri Nikhil Aggarwal has joined the same post and at the same station from

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

Also certified that Shri Nikhil Aggarwal would have continued to hold the post of Civil

Judge (Junior Division)-cum-JMIC (VII), Shimla but for his proceeding on leave for the above

period.

By order,

Sd/-

Registrar General.

_________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171 001

NOTIFICATION

Shimla, the 17th October, 2012

No. HHC/GAZ/14-258/03.—Hon’ble the Chief Justice in exercise of the powers vested in

him under Rule 2(32) of Chapter 1 of H.P. Financial Rules, 2009, has been pleased to declare the

Civil Judge (Sr. Division)-cum–CJM, Shimla as Drawing and Disbursing Officer in respect of the

Court of Civil Judge (Sr. Division)-cum-JMIC (I), Shimla and also the Controlling Officer for the

purpose of T.A. etc. in respect of the establishments attached to the aforesaid Court under head

“2014-Administration of Justice” during the leave period of Shri Avinash Chander, Civil Judge(Sr.

Division)-cum-JMIC(I), Shimla w.e.f. 29.10.2012 to 9.11.2012 with permission to prefix Sunday

and Dussehra holidays falling on 21.10.2012 to 28.10.2012 and suffix Second Saturday, Sunday

and Gazetted and local holiday falling w.e.f. 10.11.2012 to 14.11.2012 or till he returns from leave.

By order,

Sd/-

Registrar General.

__________

fpfdRlk f”k{kk ,oa vuqla/kku foHkkx

vf/klwpuk

fZ”keyk&171002] 15 vDrwcj] 2012

la[;k% ,p-,Q-MCy;w&ch¼ch½1&9@2012-&&fgekpy izns”k dh jkT;iky] Hkkjr ds lafo/kku ds

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

ijke”kZ ls] fgekpy izns”k fpfdRlk f”k{kk ,oa vuqla/kku foHkkx ds v/khu bfUnjk xk/kh fpfdRlk

egkfo|ky;] f”keyk esa jsfM;kyksth Lisf”k;sfyVh eas jsfM,”ku lsQVh vkWfQlj ¼jsfM;ks&Mkbxuksfll½] oxZ&I

¼jktif=r½ ds in ds fy, bl vf/klwpuk ls layXu mikcU/k Þdß ds vuqlkj HkrhZ vkSj izksUufr fu;e

cukrh gSa] vFkkZr~ %&&

4405

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

1- laf{kIr uke vkSj izkjHHk-&&¼1½ bu fu;eksa dk laf{kIr uke fgekpy izns”k fpfdRlk f”k{kk ,oa

vuqla/kku foHkkx ds v/khu bfUnjk xka/kh fpfdRlk egkfo|ky;] f”keyk jsfM;ksyksth Lisf”k;sfyVh jsfM,”ku

ls¶Vh vkWfQlj ¼jsfM;ks&Mkbxuksfll½] oxZ&I ¼jktif=r½ HkrhZ vkSj izksUufr fu;e] 2012 gS A

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

vkns”k }kjk]

gLrk{kfjr@&

iz/kku lfpo ¼LokLF;½A

&&&&&&&&

mikcU/k&Þdß

fgekpy izns”k fpfdRlk f”k{kk ,oa vuqla/kku foHkkx ds v/khu bfUnjk xka/kh fpfdRlk egkfo|ky; ds

jsfM;kyksth foHkkx esa jsfM,”ku Lisf”k;sfyVh esa jsfM;s”ku lsQVh vkWfQlj ¼jsfM;ks-&Mkbxuksfll½] oxZ&I

¼jktif=r½ ds in ds fy, HkrhZ vkSj izksUufr fu;e

1- in dk uke-&&jsfM,”ku ls¶Vh vkWfQlj ¼jsfM;ks-&Mkbxuksfll½

2- inksa dh la[;k-&&1¼,d½

3- oxhZdj.k-&&oxZ&I¼jktif=r½

4- osrueku-&& ¼i½ fu;fer in/kkfj;ksa ds fy, osrueku% is cS.M 10]300&34800 #i, tek 5400

#i, xzsM is A

¼ii½ lafonk ij fu;qDr deZpkfj;ksa ds fy, miyfC/k;kWa % LrHHk la[;k 15&d esa fn, x, C;kSjs ds

vuqlkj 15]700@& :i, izfreklA

5- p;u in vFkok vp;u in-&&p;u 1

6- lh/kh HkrhZ ds fy, vk;q-&&45 o’kZ vkSj blls de %

ijUrq lh/ks HkrhZ fd, tkus okys O;fDr;ksa ds fy, Åijh vk;q lhek] rnFkZ ;k lafonk ds vk/kkj ij

fu;qDr fd, x, O;fDr;ksa lfgr] igys ls gh ljdkj dh lsok esa jr vH;fFkZ;ksa dks ykxw ugha gksxh %

ijUrq ;g vkSj fd ;fn rnFkZ ;k lafonk ds vk/kkj ij fu;qDr fd;k x;k vH;FkhZ] bl #i esa

fu;qfDr dh rkjh[k dks vf/kd vk;q dk gks x;k gks] rks og rnFkZ ;k lafonk ds vk/kkj ij fu;qfDr ds

dkj.k fofgr vk;q esa NwV ds fy, ik= ugha gksxk (

ijUrq ;g vkSj fd vuqlwfpr tkfr;ksa@vuqlwfpr tutkfr;ksa rFkk vU; izoxkZsa ds O;fDr;ksa ds fy,

Åijh vk;q lhek esa mruh gh NwV nh tk ldsxh] ftruh fgekpy izns”k ljdkj ds lk/kkj.k ;k fo”ks’k

vkns”k¼vkns”kksa½ ds v/khu vuqKs; gS %

ijUrq ;g vkSj Hkh fd ifCyd lsDVj] fuxeksa rFkk Lok;Ÿk fudk;ksa ds lHkh deZpkfj;ksa dks] tks ,sls

ifCyd lsDVj] fuxeksa rFkk Lok;Ÿk fudk;ksa ds izkjfEHkd xBu ds le; ,sls ifCyd lsDVj] fuxeksa@Lok;Ÿk

fudk;ksa esa vkeysu ls iwoZ ljdkjh deZpkjh Fks] lh/kh HkrhZ esa vk;q lhek esa ,slh gh fj;k;r nh tk,xh]

tSlh ljdkjh deZpkfj;ksa dks vuqKs; gS] fdUrq bl izdkj dh fj;k;r] ifCyd lsDVj] fuxeksa rFkk Lok;Ÿk

fudk;ksa ds ,sls deZpkfjo`Un dks ugha nh tk,xh] tks i”pkr~orhZ ,sls ifCyd lsDVj] fuxeksa rFkk Lok;Ÿk

fudk;ksa ds }kjk fu;qDr fd, x, Fks@fd, x, gaS vkSj mu ifCyd lsDVj] fuxeksa@Lok;Ÿk fudk;ksa ds

izkjfEHkd xBu ds i”pkr~ fuxeksa@Lok;Ÿk fudk;ksa dh lsok esa vfUre #i ls vkesfyr fd, x, gaS@fd,

x, Fks A

4406

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

¼1½ lh/kh HkrhZ ds fy, vk;q lhek dh x.kuk] ml o’kZ ds izFke fnol ls dh tk,xh] ftlesa in

¼inksa½ dks vkosnu vkefU=r djus ds fy,] ;FkkfLFkfr] foKkfir fd;k x;k gS ;k fu;kstuky;ksa dks

vf/klwfpr fd;k x;k gSa A

¼2½ vU;Fkk lqvfgZr vH;fFkZ;ksa dh n”kk esa lh/kh HkrhZ ds fy, vk;q lhek vkSj vuqHko] fgekpy

izns”k yksd lsok vk;ksx ds foosdkuqlkj f”kfFky fd;k tk ldsxk A

7- lh/ks HkrhZ fd, tkus okys O;fDr¼O;fDr;ksa½ ds fy, visf{kr U;wure “kSf{kd vkSj vU;

vgZrk,a-&&¼d½ vfuok;Z vgZrk¼,a½ %

¼i½ fdlh ekU;rk izkIr fo”ofo|ky; ;k dsUnzh;@fgekpy izns”k }kjk lH;d~ :i ls ekU;rk izkIr

vkSj ,Vksfed ,uthZ jsxqjsVjh cksMZ] eqEcbZ] }kjk vuqeksfnr fdlh laLFkku ls jsfM,”ku

VSDukSyksth ;k jsfM;ksyksth ,oa besftaxesa LukrdksŸkj dh mikf/k A

¼ii½ jsfM;ksyksthdy fQftfDl ,.M ,Mokbtjh fMfotu ¼vkj0 ih0 ,.M ,0Mh0½ Hkkok ,Vksfed

fjlZp lsUVj ¼ch0,0vkj0lh0½] eqEcbZ] jsfM;s”ku lsQVh vkfQlj lVhZfQdsV@,dsfMVs”ku A

¼[k½ okaNuh; vgZrrk ¼,a½ %

fgekpy izns”k dh :f<;ksa] jhfr;ksa vkSj cksfy;ksa dk Kku vkSj izns”k esa fo|eku fof”k’V n”kkvksa esa

fu;qfDr ds fy, mi;qDrrk A

8- lh/ks HkrhZ fd, tkus okys O;fDr ¼O;fDr;ksa½ ds fofgr vk;q vkSj “kSf{kd vgZrk,a] izksUur O;fDr

¼O;fDr;ksa½ dh n”kk esa ykxw gksxh ;k ugha-&&vk;q% ykxw ugha A

“kSf{kd vgZrk % gka tSlk mijksDr LrEHk la[;k&7 ¼d½ esa ;Fkk fofgr gS A

9- ifjoh{kk dh vof/k] ;fn dksbZ gks-&&nks o’kZ] ftldk ,d o’kZ ls vuf/kd ,slh vkSj vof/k ds

fy, foLrkj fd;k tk ldsxk] tSlk l{ke izkf/kdkjh fo”ks’k ifjfLFkfr;ksa esa vkSj fyf[kr dkj.kksa ls vkns”k

nsA

10- HkrhZ dh i)fr % HkrhZ lh/kh gksxh ;k izksUufr] izfrfu;qfDr] LFkkukUrj.k }kjk vkSj fofHkUu

i)fr;ksasasa }kjk Hkjs tkus okys in¼inksa½ dh izfr”krrk-&&“krizfr”kr izksUufr }kjk] ,slk u gksus ij] lh/kh HkrhZ

}kjk] ;FkkfLFkfr] fu;fer vk/kkj ij ;k lafonk ds vk/kkj ij HkrhZ }kjk A

11- izksUufr] izfrfu;qfDr] LFkkukUrj.k dh n”kk esa os Jsf.k;k¡ ¼xzsM½] ftuls izksUufr] izfrfu;qfDr]

LFkkukUrj.k fd;k tk,xk-&&mijksDr LrEHk la[;k 7 ¼d½ esa lh/kh HkrhZ ds fy, fofgr “kSf{kd vgZrk /kkj.k

djus ds v/;/khu ofj’B jsfM;ksxzkQjt esa ls izksUufr }kjk ftudk ikWp o’kZ dk fu;fer lsokdky ;k xszM esas

dh xbZ yxkrkj rnFkZ lsok] ;fn dksbZ gks] dks lfEefyr djds ik¡p o’kZ dk fu;fer lasokdky gks] ,slk u

gksus ij ofj’B jsfM;ksxzkQjt esa ls izksUufr }kjk ftuds ikl mijksDr LrEHk la[;k 7¼d½ esa lh/kh HkrhZ ds

fy, fofgr “kSf{kd vgZrk ds v?;/khu ftudk ofj’B jsfM;ks xzkQj vkSj jsfM;ksxzkQj ds :i esa l;qDrrk%

nl o’kZ dk fu;fer lsokdky ;k dh xbZ yxkrkj rnFkZ lasok] ;fn dksbZ gks] dks lfEEfyr djds nl o’kZ

dk fu;fer lsokdky gks] nksuksa ds u gksus ij mijksDr LrEHk la[;k 7 ¼d½ esa lh/kh HkrhZ ds fy, fofgr

“kSf{kd vgZrk /kkj.k djus ds v/;/kkhu jsfM;ksxzkQjt easa ls izksUufr }kjk ftudk nl o’kZ dk fu;fer

lsokdky ;k xzsM esa dh xbZ yxkrkj rnZFk lsok] ;fn dksbZ gks] dks lfEefyr djds nl o’kZ dks fu;fer

lsokdky gks %

ijUrq izksUufr ds iz;kstu ds fy, izR;sd deZpkjh dks] tutkrh;@nqxeZ {ks=ksa esa ,sls {ks=ksa esa inksa

dh i;kZIr la[;k dh mityC/krk ds v/;/khu de ls de ,d dk;Zdky rd lsok djuh gksxh%

4407

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

ijUrq ;g vkSj fd mi;qZDr ijUrqd ¼1½ mu deZpkfj;ksa ds ekeys esa ykxw ughsa gksxk] ftudh

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

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

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

vuqlkj LFkkukUrfjr fd;k tk,xk A

Li’Vhdj.k&I %&&mi;ZqDr ijUrqd ds iz;kstu ds fy, tutkrh;@nqxeZ {ks=ksa esa Þdk;Zdkyß ls]

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

gq,] ,sl {ks=ksa esa rSukrh dh blls de vof/k vfHkizsr gksxhA

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

1- ftyk ykgkSy ,ao fLifr A

2- pEck ftyk dk ikaxh vkSj HkjekSj mi e.My A

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

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

dk”kkikV A

5- dqYyq ftyk dk iUnzg chl ijxuk A

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

7- ftyk fdUukSj A

8- fljekSj ftyk esa mi rglhy dejÅ ds dkBokM vkSj dksjxk iVokj o`r] js.kqdkth rglhy

ds HkykM&HkykSuk rFkk lkaxuk iVokj o`r vkSj f”kykbZ rglhy dk dksVk ikc iVokj o`r A

9- e.Mh ftyk esa djlkxs rglhy dk [kU;ksy&cxMk iVokj o`r] ckyhpkSdh mi rglhy ds

xkMk xkslkbZ eB;kuh] ?ku;kM] Fkkph] ckxh’k Lksex< vkSj [kksyuky] i)j rglhy ds >kjokM]

dqVx<] xzkeu nsox<] VªSyk] jksik] dFkksx] flYg&HkMokuh] gLriqj] ?kejsM vkSj HkVsM iVokj

o`r] Fkqukx rglhy ds fp;w.kh] dkyhikj] ekux<] Fkkp&cxMk] mRrjh ex: vkSj nf{k.kh

ex: iVokj o`r vkSj lqUnjuxj rglhy dk cVokMk iVokj o`r A

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

yxkrkj rnFkZ lsok] ;fn dksbZ gk]s izksUufr ds fy, bu fu;eksa esa ;Fkkfofgr lsokdky ds fy,] bl “krZ ds

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

fu;eksa ds micU/kksa ds vuqlkj p;u dh mfpr Lohdk;Z izfØ;k dks viukus ds i”pkr~ dh xbZ Fkh %

ijUrq mu lHkh ekeyksa eas ftuesa dksbZ dfu’B O;fDr lHHkjd ¼iks’kd½in esa vius dqy lsok dky

¼rnFkZ vk/kkj ij dh xbZ lsok lfgr] tks fu;fer lsok@fu;qfDr vuqlj.k esas gks½ ds vk/kkj ij mi;aqZDr

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

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

Åij le>s tk,axs@j[ks tk,axs A

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

de rhu o’kZ dh U;wure vgZrk lsok ;k in ds HkrhZ ,ao izksUufr fu;eksa esa fofgr lsok] tks Hkh de gks]

gksxh %

4408

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

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

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

tk,xk@le>s tk,axs A

Li’Vhdj.k%&&vfUre ijUrqd ds vUrZxr dfu’B in/kkjh izksUufr ds fy, vik= ugha le>k tk,xk

;fn ofj’B vik= O;fDr HkwriwoZ lSfud gS] ftls fMeksfCykbZTM vkeZM QksflZl ijlksuy ¼fjtosZ”ku vkQ

osdSUlht bu nh fgekpy LVsV uku&VSDuhdy lfoZlht½ #Yt] 1972 ds fu;e 3 ds mica/kksa ds vUrxZr

HkrhZ fd;k x;k gS vkSj buds vUrxZr ojh;rk ykHk fn, x, gksa ;k ftls ,Dl&lfoZleSu ¼fjtosZ”ku vkQ

osdSUlht bu nh fgekpy izns”k VSDuhdy lfoZlht½ #Yt] 1985 ds fu;e 3 ds micU/kksa ds vUrxZr HkrhZ

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

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

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

fu;qfDr@izksUufr] mfpr p;u ds i”pkr~ vkSj HkrhZ vkSj izksUufr fu;eksa ds micU/kkas ds vuqlkj dh xbZ Fkh %

ijUrq dh xbZ mi;qZDr fufnZ’V rnFkZ lsok dks x.kuk esa ysus ds i”pkr~ tks LFkk;hdj.k gksxk] mlds

QyLo:i ikjLifjd ojh;rk vifjofZrZr jgsxh A

12- ;fn foHkkxh; izksUufr lfefr fo|eku gS] rks mldh lajpuk-&&foHkkxh; izksUufr lfefr dh

v/;{krk fgekpy izns”k yksd lsok vk;ksx ds v/;{k ;k mlds }kjk ukefufnZ’V vk;ksx ds lnL; }kjk dh

tk,xh A

13- HkrhZ djus esa ftu ifjfLFkfr;ksa esa fgekpy izns”k yksd lsok vk;ksx ls ijke”kZ fd;k

tk,xk-&&tSlk fof/k }kjk visf{kr gks A

14- lh/kh HkrhZ ds fy, vfuok;Z vis{kk-&&fdlh lsok ;k in ij fu;qfDr ds fy, vH;FkhZ dk

Hkkjr dk ukxfjd gksuk vfuok;Z gS A

15- lh/kh HkrhZ }kjk in ij fu;qfDr ds fy, p;u-&&Lkh/kh HkrhZ ds ekeys esa] in ij fu;qfDr ds

fy, p;u] ekSf[kd ijh{kk ds vk/kkj ij fd;k tk,xk A ;fn ;FkkfLFkfr] fgekpy izns”k yksd lsok vk;ksx

;k vU; HkrhZ izkf/kdj.k ,slk djuk vko”;d ;k lehphu le>s] rks fyf[kr ijh{kk ;k O;kogkfjd ijh{kk ds

vk/kkj ij fd;k tk,xk] ftldk Lrj@ikB~;Øe] bR;kfn] ;FkkfLFkfr] vk;ksx@vU; HkrhZ izkf/kdj.k }kjk

vo/kkfjr fd;k tk,xkA

15&d- lafonk fu;qfDr }kjk in ij fu;qfDr ds fy, p;u-&&bu fu;eksa esa fdlh ckr ds gksrs gq,

Hkh in ij lafonk fu;qfDr;ka] uhps fn, x, fucU/kuksa vkSj “krkZsa ds v/;/khu dh tk,axh%&&

¼I½ ladYiuk-&¼d½

bl ikWfylh ds v/khu fpfdRlk f”k{kk ,oa vuqla/kku foHkkx] bfUnjk xka/kh

esfMdy dkWyst ds jsfM;ksykWth foHkkx esa jsfM,”ku lsQVh vkWfQlj ¼jsfM;ks MkWbxuksfll½ oxZ&I ¼jktif=r½

ds in dks lafonk ds vk/kkj ij izkjEHk esa ,d o’kZ ds fy, yxk;k tk,xk] ftls o’kkZuqo’kZ vk/kkj ij c<+k;k

tk ldsxk %

ijUrq lafonk vof/k esa o’kkZuqo’kZ vk/kkj ij [email protected] ds fy, lEc)+ foHkkxk/;{k ;g

izek.ki= tkjh djsxk fd lafonk ij fu;qDr O;fDr dh lsok vkSj vkpj.k] ml o’kZ ds nkSjku larks’ktud

jgk gSa] vkSj dsoy rHkh mldh lafonk dh vof/k uohd`r@foLrkfjr dh tk,xhA

¼[k½ in dk fgekpy izns”k yksd lsok vk;ksx ds dk;Z{ks= esasa vkuk%

iz/kku lfpo@lfpo ¼LokLF;½] fgekpy izns”k ljdkj fjDr inksa dks lafonk ds vk/kkj ij Hkjus ds

fy, ljdkj dk vuqeksnu izkIr djus ds i”pkr~] v/;is{kk dks lEc) HkrhZ vfHkdj.k] vFkkZr~ fgekpy izns”k

yksd lsok vk;ksx ds le{k j[ksxk A

¼x½ p;u] bu fu;eksa esa fofgr ik=rk “krksZa ds vuqlkj fd;k tk,xk A

4409

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

¼II½ lafonkRed miyfC/k;ka-&lafonk ds vk/kkj ij fu;qDr jsfM,”ku lsQVh vkWfQlj ¼jsfM;ks

MkWbxuksfll½ dks 15]700@&- #i, dh lesfdr fu;r lafonkRed jde ¼ tks is cSM dk U;wure tek xzsM

is ds cjkcj gksxh½ izfrekl lanRr dh tk,xh A ;fn lafonk esa ,d o’kZ ls vf/kd dh c<+kSrjh dh tkrh gS

rks i”pkr~orhZ o’kZ¼o’kks±½ ds fy, lafonkRed miyfC/k;ksa esasa 471@#i, dh jde ¼in ds is cSaM dk U;wure

+tek xzsM is dk rhu izfr”kr½ okf’kZd o`f) ds #i esa vuqKkr dh tk,xh A

¼III½ fu;qfDr@vuq”kklu izkf/kdkjh-&iz/kku lfpo@lfpo ¼LokLF;½ fgekpy izns”k ljdkj fu;qfDr

vkSj vuq”kklu izkf/kdkjh gksxkA

¼IV½ p;u izfØ;k-&lafonk fu;qfDr dh n”kk esa in ij fu;qfDr ds fy, p;u] ekSf[kd ijh{kk ds

vk/kkj ij fd;k tk,xk ;k ;fn vko”;d ;k lehphu le>k tk,] rks fyf[kr ijh{kk ;k O;kogkfjd ijh{kk

}kjk fd;k tk,xk] ftldk Lrj@ikB~;Øe vkfn lEc) HkrhZ vfHkdj.k] vFkkZr~ fgekpy izns”k yksd lsok

vk;ksx }kjk vo/kkfjr fd;k tk,xkA

¼V½ lafonkRed fu;qfDr;ksasa ds fy, p;u lfefr-&tSlh lEc) HkrhZ izkf/kdj.k] vFkkZr~ fgekpy

izns”k yksd lsok vk;ksx }kjk le;≤ ij xfBr dh tk,A

¼VI½ djkj-& vH;FkhZ dks] p;u ds Ik”pkr~ bu fu;eksa ls layXu mikcU/k&Þ[kß ds vuqlkj djkj

gLrk{kfjr djuk gksxkA

¼VII½ fucU/ku vkSj “krs±-&¼d½ lafonk ij fu;qDr O;fDr dks 15]700@&#i, dh fu;r

lafonkRed jde ¼tks is cSaM dk U;wure tek+ xzsM is ds cjkcj gksxh½ izfrekl lanRr dh tk,xhA lafonk

ij fu;qDr O;fDr vkxs c<k, x, o’kZ ¼o’kksZ½ ds fy, lafonkRed jde esa 471@& #i, ¼in ds is cSM dk

U;wure tek xzsM is dk rhu izfr”kr½ dh o`f) dk gdnkj gksxk vkSj vU; dksbZ lgc) izlqfo/kk,a] tSls

ofj’B@p;u osrueku bR;kfn ugha fn;k tk,xkA

¼[k½ lafonk ij fu;qDr O;fDr dh lsok iw.kZr;k vLFkk;h vk/kkj ij gksxhA

;fn lafonk Ikj fu;qDr O;fDr dk dk;[email protected] Bhd ugha ik;k tkrk gS] rks fu;qfDr lekIr fd,

tkus ds fy, nk;h gksxhA

¼x½ lafonk ij fu;qDr O;fDr] ,d ekl dh lsok iwjh djus ds Ik”pkr~ ,d fnu ds vkdfLed

vodk”k dk gdnkj gksxkA rFkkfi lafonk ij fu;qDr deZpkjh ckjg lIrkg ds izlwfr vodk”k vkSj nl

fnu ds fpfdRlk vodk”k ds fy, Hkh gdnkj gksxk@gksxh A og fpfdRlk izfriwfrZ vkSj ,y0Vh0lh0

bR;kfn ds fy, gdnkj ugha gksxk@gksxhA lafonk ij fu;qDr O;fDr dks mijksDr ds flok; fdlh vU;

izdkj dk dksbZ vodk”k vuqKkr ugh gksxk %

ijUrq vuqiHkqDr vkdfLed vodk”k vkSj fpfdRlk vodk”k ,d dyS.Mj o’kZ rd lafpr fd;k tk

ldsxk vkSj vkxkeh dyS.Mj o’kZ ds fy, vxzuhr ugha fd;k tk,xk A

¼?k½ fu;U=d vf/kdkjh ds vuqeksnu ds fcuk dŸkZO;ksa ls vuf/kd`r vuqifLFkfr ls Lor% gh lafonk

dk i;kZolku¼lekiu½ gks tk,xkA lafonk ij fu;qDr O;fDr] dÙkZO; ¼M~;wfV½ ls vuqifLFkfr dh vof/k ds

fy, lafonkRed jde dk gdnkj ugha gksxkA

¼³½ lafonk ij fu;qDr deZpkjh ftlus rSukrh ds ,d LFkku ij ikap lky dk dk;Zdky iw.kZ dj

fy;k gS] vko”;drk ds vk/kkj ij LFkkukUrj.k gsrq ik= gksxk] tgka Hkh iz”kklfud vk/kkj ij ,slk djuk

visf{kr gksA

4410

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

¼p½ p;fur vH;FkhZ dks ljdkjh@jftLVªhd`r fpfdRlk O;olk;h ls viuk vkjksX;rk izek.k&i=

izLrqr djuk gksxkA ckjg lIrkg ls vf/kd dh xHkZorh efgyk] izlo gksus rd] vLFkk;h rkSj ij vuqi;qDr

cuh jgsxhA efgyk vH;fFkZ;ksa dk fdlh izkf/kd`r fpfdRlk vf/kdkjh@O;olk;h }kjk mi;qDrrk ds fy, iqu%

ijh{k.k fd;k tk,xkA

¼N½ lafonk ij fu;qDr O;fDr dk] ;fn vius inh; dÙkZO;ksa ds lEcU/k esa nkSjs ij tkuk visf{kr

gks] rks og mlh nj ij] tSlh fu;fer izfrLFkkuh dks osrueku ds U;wure ij ykxw gS] ;k=k HkRrs@nSfud

HkRrs dk gdnkj gksxk@gksxh A

¼t½ fu;fer deZpkfj;ksa dh n”kk esa ;Fkk ykxw lsok fu;eksa ds micU/k] tSls ,Q-vkj&,l-vkj-]

NqV~Vh fu;e] lk/kkj.k Hkfo’; fuf/k fu;e] isa”ku fu;e rFkk vkpj.k fu;e vkfn lafonk ij fu;qDr

O;fDr;ksa dh n”kk esa ykxw ugha gksaxsA os bl LrEHk esa ;Fkkof.kZr miyfO/k;ksa osru vkfn ds fy, gdnkj

gkasxsA

16- vkj{k.k-&&lsok esa fu;qfDr] fgekpy izns”k ljdkj }kjk] le;≤ ij vuqlwfpr

tkfr;ksa@vuqlwfpr tutkfr;ksa@vU; fiNMs+ oxkZsa vkSj vU; izoxZ ds O;fDr;ksa ds fy, lsok esa vkj{k.k dh

ckor tkjh fd, x, vuqns”kksa ds v/khu gksxhA

17- foHkkxh; ijh{kk-&&lsok ds izR;sd lnL; dks le;≤ ij ;Fkk la”kksf/kr fgekpy izns”k

foHkkxh; ijh{kk fu;e] 1997 esa ;Fkkfofgr foHkkxh; ijh{kk ikl djuh gksxh A

18- f”kfFky djus dh “kfDr-&&tgka jkT; ljdkj dh ;g jk; gks fd ,slk djuk vko”;d ;k

lehphu gS] ogka ;g dkj.kksa dks fyf[kr esa vfHkfyf[kr djds] vkSj fgekpy izns”sk yksd lsok vk;ksx ds

ijke”kZ ls] vkns”k }kjk] bu fu;eksa ds fdlh ¼fdUgh½ ¼micU/k½micU/kksa dks fdlh oxZ ;k O;fDr ¼O;fDr;ksa½

ds izoxZ ;k in ¼inksa½ dh ckcr] f”kfFky dj ldsxh A

&&&&&&&

mikcU/k&Þ[kß

jsfM,'ku lsQVh vkWfQlj ¼jsfM;ks MkWbxuksfll½ vkSj fgekpy izns”k ljdkj ds e/; iz/kku lfpo ¼LokLF;½]

fgekpy izns”k ljdkj ds ek/;e ls fu’ikfnr dh tkus okyh lafonk@djkj dk iz:i

;g djkj Jh@Jhefr &&&&&&&&&&&&&&&iq=@iq=h &&&&&&&&&fuoklh &&&&&&&&&]

lafonk ij fu;qDr O;fDr ¼ftls blesa blds i”pkr] ÞizFke i{kdkjß dgk x;k gS½] vkSj fgekpy izns”sk dh

jkT;iky ds e/;&&&&&&&&&&&&&&&&&&&¼fu;qfDr izkf/kdkjh dk inuke½&&&&&&&&¼ ftls blesa

blds i”pkr~ Þf}rh; i{kdkjß dgk x;k gS½ ds ek/;e ls vkt rkjh[k &&&&&&&&&&&& dks fd;k

x;kA

Þf}rh; i{kdkjß us mijksDr izFke i{kdkj dks yxk;k x;k gS vkSj izFke i{kdkj us &&&&&&&&&

¼in dk uke½ ds :i esa lafonk ds vk/kkj ij fuEufyf[kr fucU/kuksa vkSj “krksZa ij lsok djus ds fy,

lgefr nh gS %&&

1- ;g fd izFke i{kdkj &&&&&&& ¼in dk uke ½&&&&&&&& ds :i esa &&&&&&&&& ls

izkjHHk gksus vkSj&&&&&&&&dks lekIr gksus okys fnu rd] ,d o’kZ dh vof/k ds fy,

f}rh; i{kdkj dh lsok esa jgsxk A ;g fofufnZ’V :i ls mfYyf[kr fd;k x;k gS vkSj nksuksa

i{kdkjksa }kjk djkj ik;k x;k gS fd izFke i{kdkj dh f}rh; i{kdkj ds lkFk lafonk] vkf[kjh

dk;Z fnol dks] vFkkZr~ &&&&&&&&fnu dks Lo;aeso gh i;Zoflr ¼lekIr½ gks tk,xh rFkk

lwpuk uksfVl vko”;d ugha gksxk %

4411

jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

ijUrq lafonk dh vof/k esa o’kkZuqo’kZ vk/kkj ij [email protected] ds fy, lEc) foHkkxk/;{k

;g izek.k&i= tkjh djsxk fd lafonk ij fu;qDr O;fDr dh lsok vkSj vkpj.k] ml o’kZ ds

nkSjku larks’ktud jgk gS vkSj dsoy rHkh mldh lafonk dh vof/k uohd`r@foLrkfjr dh

tk,xh A

2- izFke i{kdkj dh lafonkRed jde 15]700@&:i, izfrekl gksxhA

3- izFke i{kdkj dh lsok iw.kZr;k vLFkk;hZ vk/kkj ij gksxh A ;fn lafonk ij fu;qDr O;fDr dk

dk;[email protected] Bhd ugha ik;k tkrk gS ;k ;fn fu;fer in/kkjh ml fjfDr ds fo:)

fu;Dqr@rSukr dj fn;k tkrk gS] ftlds fy, izFke i{kdkj dks lafonk ij yxk;k x;k gS]

rks fu;qfDr i;Zoflr ¼lekIr½ fd, tkus ds fy, nk;h gksxh A

4- lafonk ij fu;qDr O;fDr] -------------------------- ,d ekl dh lsok iwjh djus ds Ik”pkr~ ,d fnu ds

vkdfLed vodk”k dk gdnkj gksxkA rFkkfi lafonk ij fu;qDr deZpkjh ckjg lIrkg ds

izlwfr vodk”k vkSj nl fnu ds fpfdRlk vodk”k ds fy, Hkh gdnkj gksxk@gksxh A og

fpfdRlk izfriwfrZ vkSj ,y0Vh0lh0 bR;kfn ds fy, gdnkj ughas gksxk@gksxhaA lafonk ij

fu;qDr O;fDr dks mijksDr ds flok; fdlh vU; izdkj dk dksbZ vodk”k vuqKkr ugh gksxk%

ijUrq vuqiHkqDr vkdkfLed vodk”k vkSj fpfdRlk vodk”k] ,d dyS.Mj o’kZ rd

lafpr fd;k tk ldsxk vkSj vkxkeh dyS.Mj o’kZ ds fy, vxzuhr ugha fd;k tk,xk A

5- fu;U=d vf/kdkjh ds vuqeksnu ds fcuk dRrZO;ksa ls vuf/kd`r vuqifLFkfr ls Lor% gh lafonk

dk i;kZolku¼lekiu½ gks tk,xk A lafonk ij fu;qDr &&&&&&&&&& ¼in dk uke½

dRrZO; ¼M~;wfV½ ls vuqifLFkfr dh vof/k ds fy, osru dk gdnkj ugha gksxk A

6- lafonk ij fu;qDr O;fDr] ftlus rSukrh ds ,d LFkku ij ikap o’kZ dk dk;Zdky iw.kZ dj

fy;k gS] vko”;drk ds vk/kkj ij LFkkukUrj.k gsrq ik= gksxk] tgka Hkh iz”kklfud vk/kkj ij

,slk djuk visf{kr gks A

7- p;fur vH;FkhZ dks ljdkjh@jftLVªhd`r fpfdRlk O;olk;h ls viuk vkjksX;rk izek.k&i=

izLrqr djuk gksxk A efgyk vH;fFkZ;ksa dh n”kk esa] ckjg lIrkg ls vf/kd dh xHkkZoLFkk izlo

gksus rd mls vLFkk;h rkSj ij vuqi;qDr cuk nsxhA efgyk vH;fFkZ;ksa dk fdlh izkf/kd`r

fpfdRlk vf/kdkjh@O;olk;h }kjk mi;qDrrk ds fy, iqu% ijh{k.k fd;k tkuk pkfg, A

8- lafonk ij fu;qDr O;fDr dk] ;fn vius inh; dRrZO;ksa ds lEcU/k esa nkSjs ij tkuk visf{kr

gks] rks og mlh nj ij] tSlh fu;fer izfrLFkkuh dks osrueku ds U;wure ij ykxw gS] ;k=k

HkRrs@nSfud HkRrs dk gdnkj gksxk@gksxh A

9- lafonk ij fu;qDr O;fDr¼;ksa½ dks] deZpkjh lkewfgd chek ;kstuk ds lkFk&lkFk

bZ0ih0,Q0@th0ih0,Q0 Hkh ykxw ugha gksxk A

blds Lkk{;Lo:i izFke i{kdkj vkSj f}rh; i{kdkj us lkf{k;ksa dh mifLFkfr esa blesa loZizFke

mfYyf[kr rkjh[k dks vius&vius gLrk{kj dj fn, gSa A

Lkkf{k;ksa dh mifLFkfr esa %

1- &&&&&&&&&&&&&&

&&&&&&&&&&&&&&

&&&&&&&&&&&&&&&

¼ uke o iwjk irk½

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

2- &&&&&&&&&&&&&&&&&&&

&&&&&&&&&&&&&&&&&&&

&&&&&&&&&&&&&&&&&&

¼ uke o iwjk irk½

¼izFke i{kdkj ds gLrk{kj½

Lkkf{k;ksa dh mifLFkfr esa%&&

1- &&&&&&&&&&&&&&

&&&&&&&&&&&&&&

¼ uke o iwjk irk½

2- &&&&&&&&&&&&&&&&&&&

&&&&&&&&&&&&&&&&&&&

&&&&&&&&&&&&&&&&&&

¼ uke o iwjk irk½

¼f}rh; i{kdkj ds gLrk{kj½

&&&&&&&

[AUTHORITATIVE ENGLISH TEXT OF THIS DEPARTMENT NOTIFICATION NO.

HFWB(B)1-9-2012 DATED 15-10-2012 AS REQUIRED UNDER CLAUSE (3) OF ARTICLE 348

OF THE CONSTITUTION OF INDIA].

MEDICAL EDUCATION AND RESEARCH DEPARTMENT

NOTIFICATION

Shimla-2, the 15 th October, 2012

No. HFW-B (B) 1-9/2012.—In exercise of the powers conferred by proviso to Article 309

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

Pradesh Public Service Commission, is pleased to make the Recruitment & Promotion Rules for the

post of Radiation Safety Officer, (Radio Diagnosis) Class-I (Gazetted) in the Speciality of

Radiology, Indira Gandhi Medical College, Shimla under the Department of Medical Education &

Research, Himachal Pradesh as per Annexure-A attached to this notification, namely:-

Short title and Commencement.—(1) These Rules may be called the Himachal

Pradesh, Department of Medical Education & Research, Indira Gandhi Medical College, Shimla, in

the speciality of Radiology, Radiation Safety Officer (Radio-Diagnosis), Class-I (Gazetted),

Recruitment and Promotion Rules, 2012.

(2)

These Rules shall come into force from the date of publication in the e-Rajpatra,

Himachal Pradesh.

By order,

Sd/-

Principal Secretary (Health).

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

“ANNEXURE-A”

RECRUITMENT AND PROMOTION RULES FOR THE POST OF RADIATION SAFETY

OFFICER (RADIO DIAGNOSIS) (GAZETTED) CLASS-I, IN THE SPECIALITY OF

RADIOLOGY, DEPARTMENT OF INDIRA GANDHI MEDICAL COLLEGE, SHIMLA

UNDER DEPARTMENT OF MEDICAL EDUCATION AND RESEARCH, HP.

Name of post.—Radiation Safety Officer (Radio Diagnosis).

Number of post(s) .—01 (One).

Classification.—Class-I (Gazetted).

Scale of Pay.— (i) Pay scale for regular incumbents:

Pay Band ` 10300-34800 + 5400/- Grade Pay

(ii)

Emoluments for contract employees ` 15,700/- as per details given in

Column 15-A.

Whether “Selection” post or “Non-Selection” post.—Selection.

Age for direct recruitment.—45 years and below.

Provided that upper age limit for direct recruits will not be applicable to the candidates

already in service of the Government including those who have been appointed on adhoc or on

contract basis;

Provided further that if a candidate appointed on adhoc basis or on contract basis had

become over-age on the date he/she was appointed as such he/she shall not be eligible for any

relaxation in the prescribed age-limit by virtue of his/her such adhoc or contract appointment;

Provided further that upper age-limit is relaxable for Scheduled Castes/Scheduled Tribes/

Other categories of persons to the extent permissible under the general or special order(s) of the

Himachal Pradesh Government;

Provided further that the employees of all the Public Sector Corporations and Autonomous

Bodies who happened to be Government servants before absorption in Public Sector

Corporations/Autonomous

Bodies

the

time

initial

constitutions

such

Corporations/Autonomous Bodies shall be allowed age concession in direct recruitment as

admissible to Government servants. This concession will not, however, be admissible to such staff

of the Public Sector Corporations /Autonomous Bodies and who are/were finally absorbed in the

service of such Corporations /Autonomous Bodies after initial constitution of the Public Sector

Corporations/Autonomous Bodies.

(1)

Age limit for direct recruitment will be reckoned on the first day of the year in

which the post(s) is/are advertised for inviting application or notified to the Employment

Exchanges or as the case may be.

(2)

Age and experience in the case of direct recruitment, relaxable at the discretion of

the Himachal Pradesh Public Service Commission in case the candidate is otherwise well qualified.

Minimum educational and other qualifications required for direct recruit(s).—

(a) Essential Qualification(s): (i) Master’s Degree in Radiation Technology or Radiology and

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

Imaging from a recognized University or an Institution duly recognized by the Central / H.P.

Government and approved by the Atomic Energy Regulatory Board, Mumbai.

(ii)

Radiation Safety Officer Certificate/Accreditation from Radiological Physics and

Advisory Division (RP and AD), Bhaba Atomic Research Centre (BARC), Mumbai.

(b)

Desirable Qualification(s): Knowledge of customs, manners and dialects of

Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the

Pradesh.

Whether age and educational qualification(s) prescribed for direct recruit(s)

will apply in the case of the promotee(s) .—Age: Not applicable. Educational Qualification: Yes,

as prescribed in Column No.7 (a) above.

Period of probation, if any.—Two years’ subject to such further extension for a

period not exceeding one year as may be ordered by the competent authority in special

circumstances and reasons to be recorded in writing.

10.

Method(s) of recruitment, whether by direct recruitment or by promotion,

deputation, transfer and the percentage of post(s) to be filled in by various methods.—100%

by promotion failing which direct recruitment on a ‘regular’ basis or by recruitment on contract

basis, as the case may be.

11.

In case of recruitment by promotion, deputation, transfer, grade from which

promotion/deputation/transfer is to be made.—By promotion from amongst the Senior

Radiographers subject to possessing of educational qualification prescribed for direct recruitment

against Column No.7 (a) above with five years regular service or regular combined with continuous

adhoc service, if any, in the grade failing which by promotion from amongst the Senior

Radiographers subject to possessing of educational qualification prescribed for direct recruitment

against Column No.7 (a) above with ten years regular service or regular combined with continuous

adhoc service, if any, as Senior Radiographer and Radiographer combined failing both by

promotion from amongst the Radiographers subject to possessing of educational qualification

prescribed for direct recruitment against Column No.7 (a) above with ten years regular service or

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

(I)

Provided that for the purpose of promotion every employee shall have to serve at

least one term in the Tribal / Difficult areas subject to adequate number of post(s) available in such

areas;

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

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

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

Difficult area shall be transferred to such area strictly in accordance with his/her seniority in the

respective cadre.

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

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

administrative requirements and performance of the employee.

Explanation-II.—For the purpose of proviso I supra the Tribal / Difficult Areas shall be as

under: -

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

District Lahaul & Spiti.

Pangi and Bharmour Sub Division of Chamba District.

Dodra Kawar Area of Rohru Sub-Division.

Pandrah Bis Pargana, Munish Darkali and Gram Panchayat Kashapat, Gram

Panchayats of Rampur Teshil of District Shimla.

Pandrah Bis Pargana of Kullu District.

Bara Bhangal Areas of Baijnath Sub Division of Kangra District.

District Kinnaur.

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

Sangna Patwar Circles of Renukaji Tehsil and Kota Pab Patwar Circle of Shillai

Tehsil, in Sirmaur District.

Khanyol-Bagra Patwar Circle of Karsog Tehsil, Gada-Gussaini, Mathyani, Ghanyar,

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

Graman, Devgarh, Trailla, Ropa, Kathog, Silh-Badhwani, Hastpur, Ghamrehar and

Bhatehar Patwar Circle of Padhar Tehsil, Chiuni, Kalipar, Mangarh, Thach-Bagra,

North Magru and South Magru Patwar Circles of Thunag Tehsil and Batwara Patwar

Circle of Sunder Nagar Tehsil in Mandi District.

(1)

In all cases of promotion, the continuous adhoc service rendered in the feeder post,

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

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

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

process of selection in accordance with the provisions of R&P Rules;

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

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

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

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

and placed above the junior person in the field of consideration;

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

qualifying service of at least three years’ or that prescribed in the R&P Rules for the post,

whichever is less;

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

account of the requirements of the preceding proviso, the person(s) junior to him/her shall also be

deemed to be ineligible for consideration for such promotion;

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

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

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

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

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

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

been given the benefit of seniority there-under.

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

(2)

Similarly, in all cases of confirmation, adhoc service rendered on the feeder post, if

any, prior to the regular appointment/promotion against such post shall be taken into account

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

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

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

service rendered as referred to above shall remain unchanged.

12.

If a Departmental Promotion Committee exists, what is its composition?.—

D.P.C. to be presided over by the Chairman, H.P. Public Service Commission or a Member thereof

to be nominated by him.

Circumstances under which the H.P.P.S.C. is to be consulted in making

recruitment.—As required under the Law.

14.

Essential requirement for a direct recruitment.—A candidate for appointment to

any service or post must be a citizen of India.

15.

Selection for appointment to post by direct recruitment.—Selection for

appointment to the post in the case of direct recruitment shall be made on the basis of viva-voce test

if the Himachal Pradesh Public Service Commission or other recruiting authority, as the case May

be, so consider necessary or expedient by a written test or practical test, the standard/syllabus etc.

of which will be determined by the Commission /other recruiting authority, as the case may be.

15-A. Selection for appointment to the post by contract appointment.—

Notwithstanding anything contained in these Rules, contract appointments to the post will be made

subject to the terms and conditions given below: -

(I)

CONCEPT.—(a) Under this policy the Radiation Safety Officer (Radio Diagnosis),

in the Department of Radiology, Indira Gandhi Medical College, Shimla will be engaged on

contract basis initially for one year; which may be extendable on year-to-year basis.

Provided that for extension/renewal of contract period on year to year basis the concerned

HOD shall issue a certificate that the service and conduct of the contract appointee is satisfactory

during the year and only then his period of contract is to be renewed / extended.

(b)

POST FALLS WITHIN THE PURVIEW OF HPPSC.—The Principal Secretary

(Health)/Secretary (Health) to the Government of Himachal Pradesh after obtaining the approval of

the Government to fill up the vacant posts on contract basis will place the requisition with the

concerned recruiting agency i.e. Himachal Pradesh Public Service Commission.

(c)

The selection will be made in accordance with the eligibility conditions prescribed

in these R&P Rules.

(II)

CONTRACTUAL EMOLUMENTS.—The Radiation Safety Officer (Radio

Diagnosis) appointed on contract basis will be paid consolidated fixed contractual amount @

` 15,700/- per month (which shall be equal to minimum of the pay band + grade pay). An amount

of ` 471/- (3% of the minimum of pay band + grade pay of the post) as annual increase in

contractual emoluments for the subsequent year(s) will be allowed if contract is extended beyond

one year.

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(III) APPOINTING/DISCIPLINARY

AUTHORITY.—The

Principal

Secretary

(Health)/Secretary (Health) to the Government of Himachal Pradesh will be the appointing and

disciplinary authority.

(IV) SELECTION PROCESS.—Selection for appointment to the post in the case of

contract appointment will be made on the basis of vivavoce test or if consider necessary or

expedient by a written test or practical test, the standard/syllabus etc. of which will be determined

by the concerned recruiting agency i.e. the Himachal Pradesh Public Service Commission.

(V)

COMMITTEE

FOR

SELECTION

CONTRACTUAL

APPOINTMENTS.—As may be constituted by the concerned recruiting agency i.e. the Himachal

Pradesh Public Service Commission from time to time.

(VI) AGREEMENT.—After selection of a candidate, he / she shall sign an agreement as

per Annexure-B appended to these Rules.

(VII) TERMS AND CONDITIONS.—(a) The contractual appointee will be paid fixed

contractual amount @ ` 15,700/- per month (which shall be equal to minimum of pay band +

grade pay). The contract appointee will be entitled for increase in contractual amount @ ` 471/-

(3% of the minimum of the pay band + grade pay of the post) for further extended years and no

other allied benefits such as senior/selection scales etc. will be given.

(b)

The service of the contract appointee will be purely on temporary basis. The

appointment is liable to be terminated in case the performance/conduct of the contract appointee is

not found satisfactory.

(c)

Contract Appointee will be entitled for one day’s casual leave after putting one

month service. The contract employee will also be entitled for 12 weeks Maternity Leave and 10

day’s Medical Leave . He/She shall not be entitled for Medical Re-imbursement and LTC etc. No

leave of any other kind except above is admissible to the contract appointee.

Provided that the un-availed Casual Leave and Medical Leave can be accumulated upto the

Calendar Year and will not be carried forward for the next Calendar Year.

(d)

Unauthorized absence from the duty without the approval of the controlling officer

shall automatically lead to the termination of the contract. Contract appointee shall not be entitled

for contractual amount for the period of absence from duty.

(e)

An official appointed on contract basis who has completed five years tenure at one

place of posting will be eligible for transfer on need based basis wherever required on

administrative grounds.

(f)

Selected candidate will have to submit a certificate of his/her fitness from a

Government/Registered Medical Practitioner. Women candidate pregnant beyond 12 weeks will

stand temporarily unfit till the confinement is over. The women candidate will be re-examined for

the fitness from an authorized Medical Officer/Practitioner.

(g)

Contract appointee will be entitled to TA/DA if required to go on tour in connection

with his/her official duties at the same rate as applicable to regular counterpart at the minimum of

pay scale.

(h)

Provisions of service rules like FR SR, Leave Rules, GPF Rules, Pension Rules &

Conduct Rules etc. as are applicable in case of regular employees will not be applicable in case of

contract appointees. They will be entitled for emoluments etc. as detailed in this column.

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16.

Reservation.—The appointment to the service shall be subject to orders regarding

reservation in the service for Scheduled Castes /Scheduled Tribes / Other Backward Classes / other

categories of persons issued by the Himachal Pradesh Government from time to time.

17.

Departmental Examination.—Every member of the service shall pass a

Departmental Examination as prescribed in the H.P. Departmental Examination Rules, 1997, as

amended from time to time.

18.

Powers to relax.—Where the State Government is of the opinion that it is necessary

or expedient to do so, it may, by order for reasons to be recorded in writing and in consultation with

the Himachal Pradesh Public Service Commission relax any of the provision(s) of these Rules with

respect to any Class or Category of person(s) or post(s).

________

ANNEXURE-B

Form of contract /agreement to be executed between the Radiation Safety Officer (Radio-

Diognosis) and the Government of Himachal Pradesh through Principal Secretary ( Health )

to the Govt. of Himachal Pradesh

This agreement is made on this________ day of ______________ in the year

____________between Sh./Smt.______________________S/oD/oShri.____________________

R/o________________________________________________contract

appointee

(hereinafter

called the FIRST PARTY), and the ____________________________________(Designation of

the Appointing Authority) Himachal Pradesh (here-in-after the SECOND PARTY). Whereas, the

SECOND PARTY has engaged the aforesaid FIRST PARTY and the FIRST PARTY has agreed to

serve as a___________________ (Name of the post) on contract basis on the following terms &

conditions:-

That the FIRST PARTY shall remain in the service of the SECOND PARTY as a

___________ (Name of the post) for a period of 1 year commencing on day

of______________and ending on the day of ________. It is specifically mentioned

and agreed upon by both the parties that the contract of the FIRST PARTY with

SECOND PARTY shall ipso-facto stand terminated on the last working day i.e. on -

-----------------and information, notice shall not be necessary.

Provided that for further extension/renewal of contract period of HOD shall

issue a cerfiticate that the service and conduct of the contract appointee was

satisfactory during the year and only then the period of contract is to be

renewed/extended.

That the contractual amount of the FIRST PARTY will be 15,700 /- per month.

That the services of FIRST PARTY will be purely on temporary basis. The

appointment is liable to be terminated in case the performance/contract of the

contract appointee is not found good or if a regular incumbent is appointed/ posted

against the vacancy for which the first party was engaged on contract.

That the Contract Appointee will be entitled for one day’s casual leave after putting

one month service. The contract employee will also be entitled for 12 weeks

Maternity Leave and 10 day’s Medical Leave. He/She shall not be entitled for

Medical Re-imbursement and LTC etc. No leave of any other kind except above is

admissible to the contract appointee. Provided that the un-availed Casual Leave and

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

Medical Leave can be accumulated upto the Calendar Year and will not be carried

forward for the next Calendar Year.

That the unauthorized absence from the duty without the approval of the controlling

officer shall automatically lead to the termination of the contract. A

contractual_________ (Name of the post) will not be entitled for salary for the

period of absence from duty.

That an officer appointed on contract basis who have completed five years tenure at

one place of posting will be eligible for transfer on need basis wherever required on

administrative grounds.

That the selected candidate will have to submit a certificate of his/her fitness from a

Government/Registered Medical Practitioner. In case of women candidates pregnant

beyond twelve weeks will render her temporarily unfit till the confinement is over.

The women candidate should be re-examined for fitness from an authorized Medical

Officer/Practitioner.

That the contract appointee shall be entitled to TA/DA if required to go on tour in

connection with his official duties at the same rate as applicable to regular counter-

part officer/ official.

That the Employees Group Insurance Scheme as well as E.P.F./G.P.F. will not be

applicable to contractual appointee(s).

IN WITNESS THE FIRST PARTY AND SECOND PARTY have herein to set their hands

the day, month and year first, above written.

IN THE PRESENCE OF WITNESS:

1.___________________

_____________________

(Name and Full Address)

(Signature of the FIRST PARTY)

2.____________________

_____________________

(Name and Full Address)

IN THE PRESENCE OF WITNESS:

1.___________________

____________________

_____________________

(Name and Full Address)

(Signature of the SECOND PARTY)

2._____________________

______________________

(Name and Full Address)

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jkti=] fgekpy izns'k] 19 vDrwcj] 2012@27 vkf'ou] 1934

fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr