jkti=] fgekpy izns'k

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

f”keyk] cq/kokj 21 uoEcj] 2012@30 dkfrZd] 1934

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH, SHIMLA -171 001

NOTIFICATION

Shimla, the 16th November, 2012

No.HHC/Admn.6 (18)77-VII.—In exercise of the powers vested in it under Section 13 of

the Code of Criminal Procedure, 1973, the Hon’ble High Court of Himachal Pradesh has been

pleased to confer the powers of Special Judicial Magistrate Second Class, upon the following IAS

Probationers, attached for District Training with Deputy Commissioners of the Districts mentioned

against their names, w.e.f. 10.12.2012 to 29.5.2013 to be exercised by them within their

jurisdiction.

174&jkti=@2012&21&11&2012

¼4723½

4724

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Sr. No.

Name of IAS Probationer

District

Sh. Lalit Jain

Solan

Sh. Rugved Milind Thakur

Mandi

Sh. Vivek Bhatia

Bilaspur

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 17th November, 2012

No.HHC/GAZ/14-317/2010.—Hon’ble the Chief Justice has been pleased to grant 12 days’

earned leave w.e.f. 26.11.2012 to 7.12.2012 with permission to prefix Sunday falling on 25.11.2012

and to suffix Second Saturday and Sunday falling on 8.12.2012 and 9.12.2012 in favour of Shri

Sandeep Singh Sihag, Civil Judge (Junior Division)-cum-JMIC (2), Nurpur, District Kangra, H.P.

Certified that Shri Sandeep Singh Sihag 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 Sandeep Singh Sihag would have continued to hold the same post of

Civil Judge (Junior Division)-cum-JMIC (2), Nurpur, District Kangra, H.P., 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 November, 2012.

No.HHC/GAZ/14-290/2006.—Hon’ble the Chief Justice has been pleased to grant two

days’ earned leave for 19.11.2012 and 20.11.2012 with permission to prefix Sunday falling on

18.11.2012 in favour of Shri Sidharth Sarpal, Civil Judge (Junior Division)-cum-JMIC, Kandaghat,

District Solan, H.P.

Certified that Shri Sidharth Sarpal 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 Sidharth Sarpal would have continued to hold the post of Civil

Judge (Junior Division)-cum-JMIC, Kandaghat, H.P., but for his proceeding on leave for the above

period.

By order,

Sd/-

Registrar General.

4725

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HIGH COURT OF HIMACHAL PRADESH SHIMLA-171001

NOTIFICATION

Shimla the 16th November, 2012

No. HHC/GAZ/14-272/2003.—Hon’ble the Chief Justice has been pleased to grant four

days’ earned leave w.e.f. 16.11.2012 to 19.11.2012 in favour of Shri Hoshiar Singh Verma, Civil

Judge (Junior Division)-cum-JMIC(II), Paonta Sahib, District Sirmaur, H.P.

Certified that Shri Hoshiar Singh Verma 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 Hoshiar Singh Verma would have continued to hold the same post

of Civil Judge (Junior Division)-cum-JMIC (II), Paonta Sahib, District Sirmaur, H.P., but for his

proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 17th November, 2012

No.HHC/Admn.6(23)/74-XIV.—Hon’ble the Chief Justice in exercise of the power vested

in him under Rule 2 (32) of Chapter 1 of H.P. Financial Rule s, 2009 has been pleased to declare

the Presiding Officer, Fast Track Court, Solan, as Drawing and Disbursing Officer in respect of the

Court of Additional District and Sessions Judge, Solan and also the Controlling Officer for the

purpose of T.A. etc. in respect of establishment attached to the aforesaid Court under head “2014

Administration of Justice” during the earned leave period of Shri J. N. Yadav, Additional District

and Sessions Judge, Solan w.e.f. 20.11.2012 to 7.12.2012 with permission to suffix Second

Saturday and Sunday falling on 8.12.2012 and 9.12.2012 or until he returns from leave.

By order,

Sd/-

Registrar General.

_________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171001

NOTIFICATION

Shimla the 17th November, 2012

No. HHC/Admn. 6 (23)/74-XIV.—Hon’ble the Chief Justice in exercise of the powers

vested in him under Rule 2 (32) of Chapter I of H.P. Financial Rules, 2009, has been pleased to

declare the Civil Judge (Senior Division)-cum-JMIC(1), Nurpur as Drawing and Disbursing Officer

in respect of the Court of Civil Judge (Junior Division)-cum-JMIC(2), Nurpur and also the

Controlling Officer for the purpose of T.A. etc. in respect of establishments attached to the

aforesaid Court under head “2014-Administration of Justice” during the earned leave period of Shri

Sandeep Singh Sihag, Civil Judge (Junior Division)-cum-JMIC(2), Nurpur w.e.f. 26.11.2012 to

7.12.2012 with permission to prefix Sunday falling on 25.11.2012 and to suffix Second Saturday

and Sunday falling on 8.12.2012 and 9.12.2012 or until he returns from leave.

By order,

Sd/-

Registrar General.

4729

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IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No. : 41/2011

Date of Institution : 03.05.2011

Date of Decision : 04.07.2012

Smt. Beena Devi w/o Shri Jai Lal, r/o Village Karyal, P.O. Sadhot, Tehsil Sarkaghat, Distt.

Mandi, H.P.

….Petitioner.

Versus

The Executive Engineer, HPPWD Division, Dharampur, District Mandi, H.P.

….Respondent.

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

For the Petitioner :

Sh. Suresh Kumar Sharma, Adv.

For the Respondent :

Sh. Sanjeev Katoch, Dy.D.A.

AWARD

The below given reference has been received from the appropriate Government for

adjudication:

“Whether retrenchment of services of Smt. Beena Devi w/o Sh. Jai Lal, by the Executive

Engineer, HPPWD (B&R) Division, Dharampur, Tehsil Sarkaghat, Distt. Mandi, w.e.f.

08.7.2005 vide notice dated 04.7.2005, without following the provisions of the Industrial

Disputes Act, 1947 is legal and justified? If not, to what back wages, service benefits and

relief the above named worker is entitled to from the concerned employer?”

The case of the petitioner (as set out in the statement of claim/demand) is that her

services were engaged as daily rated beldar by the respondent on 01.2.2000. She worked as such

up-to 07.7.2005. On 08.7.2005, her services were terminated by the respondent wrongly and

illegally. No seniority list as per law has been prepared by the respondent. The persons junior to her

(petitioner) are still working with the respondent/department and their services have been

regularized. The respondent has failed to adhere to the principle of ‘last come first go’. She

(petitioner) was engaged for doing the work of permanent nature which is still continuing. The

Government of Himachal Pradesh vide notification dated 07.9.1992 conferred the powers of

specified authority for the purpose of Section 25-N of the Industrial Disputes Act, 1947 (‘the Act’

for short) upon the Labour Commissioner, Himachal Pradesh. In other States also, concerned

Labour Commissioners are exercising the powers of the specified authority. In the instant case, the

HPPWD in order to facilitate her (petitioner’s) illegal retrenchment and retrenchment of the co-

workers, conferred the powers of the specified authority upon the Chief Engineer, Central Zone,

Mandi per notification dated 14.2.2005 issued by the Government of Himachal Pradesh. The Chief

Engineer directed the Executive Engineer to retrench her (petitioner) and her co-workers. The Chief

Engineer being one of the interested parties and directly related with her (petitioner’s) employment

did not provide proper opportunity of being heard to her (petitioner). He acted in a biased and

discriminatory manner as well as granted the permission to retrench her (petitioner) and some other

workers. The appointment of the Chief Engineer as specified authority is wrong, illegal and void

ab-initio. In the month of April, 2005, the respondent/department served a notice under Section 25-

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N of the Act upon her (petitioner) and the other workers. Civil Writ Petition No. 486/2005 was

filed before the Hon’ble High Court of Himachal Pradesh challenging the notification dated

14.2.2005. Reply to the writ petition was preferred by the respondent. When the civil writ petition

came up for hearing before the Hon’ble High Court, it was observed orally by the Hon’ble Court

that such type of notifications are not sustainable in the eyes of law. The State of Himachal Pradesh

then rescinded the notification dated 14.2.2005 and conferred the powers of the specified authority

under Section 25-N of the Act once again upon the Labour Commissioner. The Hon’ble High Court

while disposing of the writ petition directed the competent authority to look into the legal sanctity

of notification dated 14.2.2005 and the permission granted by the Chief Engineer resulting in her

(petitioner’s) retrenchment and the retrenchment of the other workmen. The notification dated

14.2.2005 was issued by the department solely with a view to terminate her (petitioner’s) services.

At the time of her disengagement sufficient work and funds were available with the

respondent/department. She (petitioner) had completed 240 days of work in a block of 12 calendar

months preceding the date of hers termination. The act and conduct of the respondent is highly

illegal and unjustified. The same is also violative of Sections 25-F, 25-G and 25-H of the Act. From

the date of her disengagement, she is unemployed, having no source of income.

As such, as is apparent from the prayer clause of the petition/statement of claim, the

petitioner has claimed the following relief(s) in this petition:

“i.

That the notification dated 14.2.2005 bearing No. shram (A) 4-1/2005 may kindly be

declared wrong and illegal and be set aside

ii.

The permission granted by the specified authority-cum-Chief Engineer, Central

Zone Mandi under Section 25(N) of the Industrial Disputes Act, 1947 for the

retrenchment of the claimant/applicant may kindly be declared null and void and be

set aside and the retrenchment of Claimant/applicant be declared null and be set

aside.

iii.

The claimant/applicant may kindly be ordered to be reinstated as daily rated beldar

with full back wages, seniority, regularization and other consequential service

benefits etc. and the present statement of claims may kindly be allowed in favour of

the claimant/applicant with cost in the interest of justice and justice be done”.

On notice, the respondent appeared. He filed detailed reply controverting the

averments made in the petition/statement of claim. Preliminary objections have been raised to the

effect that the reference/claim petition is not maintainable as other efficacious remedies at the first

instance are available to the petitioner. The petition suffers from the vice of delay and laches. The

petitioner has not come to the Court with clean hands and has suppressed the material facts from

the Court. She (petitioner) is estopped from filing the petition by her act and conduct. On merits, it

has been owned that the services of the petitioner were engaged as a daily rated beldar on

01.2.2000 and she worked as such up-to 07.7.2005. She was retrenched from service w.e.f.

08.7.2005. Three months basic pay in lieu of the notice period and retrenchment compensation

were paid to the petitioner. It stands admitted that some persons junior to the petitioner are working

with him (respondent). The juniors are working due to non availability of the seniors who were

transferred from other Division/Sub Division. The retrenchment notices have also been served on

the junior workers who are surplus. It stands admitted that the specified authority viz. Chief

Engineer, Central Zone, Mandi, had given the permission for retrenchment of the surplus labour.

The notification dated 14.2.2005 was rightly issued by the department to avoid the litigation. The

petitioner has been rightly removed from service. No provision of the Act has been infringed. The

petitioner is not entitled to any relief. In these circumstances, the respondent prays that the petition

in hand be dismissed.

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In the rejoinder, the petitioner has reiterated the contents of the petition/statement of

claim and refuted the objections put forth by the respondent.

Per order dated 12.9.2011, below given issues were struck by my ld. Predecessor:

Whether the retrenchment of the petitioner under Section 25-N of the

Industrial Disputes Act, 1947 is illegal and unjustified as alleged. If so, to

what effect?

. .OPP

Whether the termination of the petitioner is also violative of the provisions

under Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 as

alleged. If so, to what effect?

. .OPP

Whether the petition suffers from the vice of delay and laches as alleged. If

so, to what effect?

. .OPR

Whether the reference is not maintainable as alleged. If so, to what effect?

. .OPR

Relief.

I have heard the ld. counsel/AR for the parties and have gone through the case file.

For the reasons detailed here under, my findings on the above issues are as follows:-

Issue No.1 : Yes

Issue No.2 : Yes

Issue No.3 : No

Issue No.4 : Not pressed.

Relief. :

Reference/claim petition allowed in part vide operative portion of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 and 2

Being interlinked and to avoid the repetition, both these issues are taken up together

for adjudication.

The petitioner Smt. Beena Devi stepped into the dock as PW1. In her affidavit Ex.

PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the

petition/statement of claim in its entirety. In the cross-examination, she admitted that she worked as

a daily waged beldar up-to July, 2005. She also admitted that Dharampur Division of HPPWD was

created in the year 1998. She denied that with the creation of new Division, the labour became

surplus. She admitted that her services alongwith 1087 other workers were dispensed with by the

respondent. She denied that no person junior to her has been retained in service by the respondent.

She also denied that the claim put forth by her is false.

10.

Conversely, Sh. Prakash Chand, Executive Engineer, HPPWD, Division Dharampur

(respondent) testified as RW1. He corroborated on oath the contents of the reply submitted by him.

In the cross-examination, he admitted that the petitioner had worked for more than 240 days during

the period of 12 calendar months preceding the date of termination of her services. He also

admitted that one Smt. Mamta Devi w/o Shri Hans Raj was engaged as a daily waged beldar. Her

services were terminated w.e.f. 08.7.2005. The copy of the termination notice in respect of Smt.

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Mamta Devi is Ex. RW1/C. He admitted that Smt. Mamta Devi was re-engaged as a daily waged

beldar in the year 2008. Volunteered, she was re-engaged on compassionate grounds because her

husband (Hans Raj) expired while serving the HPPWD. Before re-engaging Smt. Mamta Devi, no

opportunity of re-employment was afforded to the petitioner. He denied that Smt. Mamta Devi was

junior to the petitioner. He does not know that Shri Hans Raj (husband of Smt. Mamta Devi) died

in the year 1999. He controverted that at the time of termination of services of the petitioner, the

work and funds were available.

11.

Ex. PW1/B is the seniority list in respect of the daily waged beldars of the office of

the respondent.

12.

Ex. PW1/C is the category-wise seniority list of all the daily waged workers working

under B&R Division, HPPWD, Dharampur as on 07.7.2005.

13.

Ex. RW1/A is the copy of the order dated 17.6.2005 passed by the specified

authority i.e. Chief Engineer, Central Zone, Mandi. As per this order he accorded the permission to

retrench a number of workmen.

14.

Ex. RW1/B is the seniority list of daily waged beldars in respect of Dharampur

Division who had completed 8 years of service up-to 31.3.2008.

15.

Ex. RW1/D is the copy of the notice dated 02.7.2005 issued by the Executive

Engineer, B&R Division, HPPWD, Dharampur to the petitioner under Section 25-N of the Act

intimating that her services shall stand terminated w.e.f. 08.7.2005.

16.

It is the admitted case of the respondent that the services of the petitioner were

engaged as a daily rated beldar on 01.2.2000 and she worked as such up-to 07.7.2005. It is also an

admitted fact that the services of the petitioner were terminated by the respondent after issuing a

notice dated 04.7.2005, the copy of which is Ex.RW1/D, w.e.f. 08.7.2005.

17.

There is no denial of the fact that Chief Engineer, HPPWD, Central Zone, Mandi

was appointed as a specified authority by the Government and he gave the permission to retrench

the petitioner and other workmen per order dated 17.6.2005, the copy of which is Ex. RW1/A. This

order has already been held to be bad in the eyes of law in a number of Awards passed by this

Court relating to the similarly situated workmen. Those Awards have been affirmed by the Hon’ble

High Court of Himachal Pradesh.

18.

From the statement made by the respondent (RW1) coupled with the seniority lists

placed on the record, it can be gathered that the persons junior to the petitioner are serving the

respondent/department. Smt. Mamta Devi w/o late Sh. Hans Raj was re-engaged by the respondent

in the year 2008 i.e. after the retrenchment of the petitioner. There is nothing on the record to show

that at the time of re-engaging Smt. Mamta Devi an opportunity of re-employment was given to the

petitioner. The respondent has failed to adhere to the principle of ‘last come first go’. His action

contravenes the provisions of Sections 25-G and 25-H of the Act. The retrenchment of the

petitioner is illegal and unjustified.

19.

As already mentioned several references relating to similarly situated workmen have

already been decided by this Court. The Awards rendered by this Court have been affirmed by the

Hon’ble High Court of Himachal Pradesh. The Hon’ble High Court while holding the retrenchment

to be wrong and illegal has ordered the reinstatement of the workmen. The respondent has also

been directed by the Hon’ble High Court to pay lump sum amount of Rs.50,000/- to each and every

workman in lieu of the back wages and compensation etc. To avoid discrimination amongst the

workmen, the petitioner is also entitled to such relief(s).

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20.

These issues are decided in favour of the petitioner and against the respondent.

ISSUE NO. 3

21.

In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society

Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble Supreme Court that:

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

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

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

fact by showing the real prejudice and not as a merely hypothetical defence. No reference to

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

22.

In view of the trite laid down in this ruling, it cannot be said that the petition is hit

by the vice of delay and laches. Of course, the delay in raising the industrial dispute by a workman

can be taken into account by the Court while granting her the relief(s) claimed.

23.

It does not appeal to a reasonable mind that a person like the petitioner will sit at

home during the period she is/was out of the service. The petitioner has failed to discharge the

initial onus that during the period of her forced idleness, she was not gainfully employed.

24.

This issue is also decided in favour of the petitioner and against the respondent.

ISSUE NO. 4

25.

Not pressed.

RELIEF (ISSUE NO. 5)

26.

As a sequel to my findings on the various issues, the instant claim petition/reference

succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and

quashed. The respondent is directed to re-engage the petitioner forthwith. She shall be entitled to

the seniority and continuity in service from the date of her illegal termination i.e. 08.7.2005. The

respondent is also directed to pay lump sum amount of Rs.50,000/- to the petitioner in lieu of the

back wages and compensation etc. Parties to bear their own costs.

27.

The reference is answered in the aforesaid terms.

28.

A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

29.

File after due completion be consigned to the Record Room.

Announced in the open Court today this 04th day of July, 2012.

By order,

RAJAN GUPTA,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

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IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No. : 209/2010

Date of Institution : 04.08.2010

Date of Decision : 20.07.2012

S/Sh. Bal Krishan s/o Sh. Bihari Lal, Lekh Raj s/o Sh. Shankar Dass, Netar Singh s/o Sh.

Dinga Ram, Brij Lal s/o Sh. Sunka Ram, Sukh Ram s/o Sh. Chughu Ram, Jagdish Chand s/o Sh.

Sant Ram, Om Prakash s/o Sh. Basant Ram and Ramesh Kumar s/o Sh. Perma Ram, through Sh.

N.L. Kondal, Legal Advisor (BMS), H.Q. Balakrupi, P.O. Jalpehar, Tehsil Joginder Nagar, Distt.

Mandi, H.P.

….Petitioners

Versus

The Superintending Engineer, (Power Wing) HPSEB Circle Palampur, Distt. Kangra, H.P.

& Resident Engineer, HPSEB, Bassi Power House, Joginder Nagar, Distt. Mandi, H.P.

….Respondents

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

For the Petitioners :

Sh. N.L. Kaundal, AR : Sh. Vijay Kaundal, Adv.

For the Respondents :

Sh. B.K. Sood, Adv.

AWARD

The below given reference has been received from the appropriate Government for

adjudication:

“Whether demand of S/Sh. Bal Krishan s/o Sh. Bihari Lal, Lekh Raj s/o Sh. Shankar Dass,

Netar Singh s/o Sh. Dinga Ram, Brij Lal s/o Sh. Sunka Ram, Sukh Ram s/o Sh. Chughu

Ram, Jagdish Chand s/o Sh. Sant Ram, Om Prakash s/o Sh. Basant Ram and Ramesh

Kumar s/o Sh. Perma Ram before The Superintending Engineer, (Power Wing) HPSEB

Circle Palampur, Distt. Kangra, H.P. & Resident Engineer, HPSEB, Bassi Power House,

Joginder Nagar, Distt. Mandi, H.P., who were regularized by HPSEB on February, 1997 to

regularize their services on completion of 10 years of continuous service on 01.01.1994 as

per judgment of Hon’ble Supreme Court of India of 1994 in case of Mool Raj Upadhayay

V/S State of H.P. & Others, is proper and justified? If yes, what relief of service benefits the

above workmen are entitled to?”

The case of the petitioners (as set out in the statement of claim/demand) is

reproduced below for ready reference and the sake of convenience.

“1.

(i)

That the services of applicant Sh. Bal Krishan s/o Sh. Bihari Lal have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. February, 1983 and he had been continuously worked as such on

02.02.1997.

(ii)

That the services of applicant Sh. Lekh Raj s/o Sh. Shankar Dass have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. September, 1984 and he had been continuously worked as such

on 02.02.1997.

4735

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(iii)

That the services of applicant Sh. Netar Singh s/o Sh. Dhingu Ram have

been engaged by the HPSEB, Bassi Power House on muster roll on daily

waged basis w.e.f. May, 1984 and he had been continuously worked as such

on 02.02.1997.

(iv)

That the services of applicant Sh. Brij Lal s/o Sh. Sunka Ram have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. June, 1984 and he had been continuously worked as such on

02.02.1997.

(v)

That the services of applicant Sh. Sukh Ram s/o Sh. Chughu Ram have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. April, 1985 and he had been continuously worked as such on

14.02.1997.

(vi)

That the services of applicant Sh. Jagdish Chand s/o Sh. Sant Ram have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. 30.4.1984 and he had been continuously worked as such on

02.02.1997.

(vii) That the services of applicant Sh. Om Prakash s/o Sh. Basant Ram have been

engaged by the HPSEB, Bassi Power House on muster roll on daily waged

basis w.e.f. May, 1983 and he had been continuously worked as such on

02.02.1997.

(viii) That the services of applicant Sh. Ramesh Kumar s/o Sh. Perma Ram have

been engaged by the HPSEB, Bassi Power House on muster roll on daily

waged basis w.e.f. September, 1983 and he had been continuously worked as

such on 02.02.1997.

That all the above named applicants were working under the Assistant

Engineer, Bassi Power House, Electrical & Maintenance Sub Division

during their services on daily wages basis.

That the services of all the applicants except Sh. Sukh Ram have been

appointed on the work-charge status as Helper by the Superintending

Engineer, (Generation) w.e.f. 03.02.1997 and the services of Sh. Sukh Ram

have been appointed on work charge status w.e.f. 15.02.1997 in the regular

pay scale 800-30-950-35-1160-40-1320-45-1455 + usual allowance

sanctioned from time to time.

That it is specifically stated here that as per the judgment of Hon’ble

Supreme Court of India case titled Mool Raj Upadhaya V/S State of H.P. &

Others in which the State Government has regularized the services of those

daily wager who were working in various government department under the

State Government who have been completed 10 years continuous services in

work charge status in regular pay scale as fixed by the State Government in

categories.

(i)

That the applicant Sh. Bal Krishan has joined as daily waged basis

w.e.f. February, 1983 continuously without any breaks and he had

been completed more than 10 years as on 31.12.1993 and he is

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entitled as work-charge status w.e.f. 01.01.1994 instead of

03.02.1997 on regular pay scale.

(ii)

That the applicant Sh. Lekh Raj has joined as daily waged basis w.e.f.

26.09.1984 continuously without any breaks and he had been

completed more than 10 years as on 25.09.1994 and he is entitled as

work-charge status w.e.f. 26.09.1994 instead of 03.02.1997 on

regular pay scale.

(iii)

That the applicant Sh. Netar Singh has joined as daily waged basis

w.e.f. May, 1984 continuously without any breaks and he had been

completed more than 10 years as on 30.04.1994 and he is entitled as

work-charge status w.e.f. 01.05.1994 instead of 03.02.1997 on

regular pay scale.

(iv)

That the applicant Sh. Brij Lal has joined as daily waged basis w.e.f.

26.06.1984 continuously without any breaks and he had been

completed more than 10 years as on 25.06.1994 and he is entitled as

work-charge status w.e.f. 26.06.1994 instead of 03.02.1997 on

regular pay scale.

(v)

That the applicant Sh. Sukh Ram has joined as daily waged basis

w.e.f. 26.04.1985 continuously without any breaks and he had been

completed more than 10 years as on 25.04.1995 and he is entitled as

work-charge status w.e.f. 26.04.1995 instead of 15.02.1997 on

regular pay scale.

(vi)

That the applicant Sh. Jagdish Chand has joined as daily waged basis

w.e.f. 30.04.1984 continuously without any breaks and he had been

completed more than 10 years as on 30.04.1994 and he is entitled as

work-charge status w.e.f. 01.05.1994 instead of 03.02.1997 on

regular pay scale.

(vii) That the applicant Sh. Om Prakash has joined as daily waged basis

w.e.f. May, 1983 continuously without any breaks and he had been

completed more than 10 years as on 31.12.1993 and he is entitled as

work-charge status w.e.f. 01.01.1994 instead of 03.02.1997 on

regular pay scale.

(viii) That the applicant Sh. Ramesh Kumar has joined as daily waged

basis w.e.f. September, 1983 continuously without any breaks and he

had been completed more than 10 years as on 31.12.1993 and he is

entitled as work-charge status w.e.f. 01.01.1994 instead of

03.02.1997 on regular pay scale.

That the action of the respondents to not granted the work-charge status to

the applicants after completion of their 10 year continuous service is highly

unjustified, arbitrary, unconstitutional, contrary and against the judgment

passed by the Hon’ble Apex Court in case titled Mool Raj Upadhaya v/s

State of H.P. & others in SLR 1994-378 and similar view has again recalled

by the Hon’ble Apex Court in 2007 FLR-434 case titled State of H.P. &

Others v/s Gehar Singh in which the Hon’ble Apex Court has not interfered

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the judgment passed in case of Mool Raj Upadhaya (supra) the Hon’ble

Apex Court has held the work charge status be granted to all the daily wager

workmen working in government department and who have been completed

10 years continuous service and on the basis of this judgment the state

government of H.P. has implemented the order of Apex Court and the same

has been complied by the government department.

That the HPSEB is also the state government department but the said order

of Apex Court has not implemented by the board till today and same has

been violated the order of state government as well as Apex Court.

That it is specifically stated here before 1997 the HPSEB has made his own

service rules and fixed the criteria for work charge status for five years and

those who have been completed 5 years services have been granted work

charge status in regular pay scale. But in this case all the applicants have

been completed more than 13 or 14 year continuous service have been

granted the work charge status w.e.f. 03.02.1997 and 15.02.1997 and the

same has been violated against the service rules of the board.

That all the workmen have been jointly represented to the board vide their

representation dated 03.06.1996, 02.11.1998 and 16.04.2001 but no reply has

been given regarding their representation by the board and thereafter the

applicants have been raised their demand notice dated 20.04.2004 and after

completion of more than 6 years before the conciliation the matter has been

referred by the appropriate government dated 12.07.2010 so it is not the fault

of workmen to raise the industrial dispute on belated stage.

Reliefs:

It is therefore prayed in view of the aforesaid submissions made here in above the Hon’ble

Court may kindly be granted the following relief in the favour of applicant.

(i)

The Hon’ble Court may kindly be set aside the work charge order of all the

workmen dated 03.02.1997 and 15.02.1997 and directed to respondents to

grant them work charge status as Helper after completion of their 10 years

continuous service and also directed to pay the arrear of salary and other

consequential service benefits throughout.

(ii)

The Hon’ble Court again directed to respondent to pay the interest on arrear

@ 12% from the date of due amount to till the date of realization the amount

along with litigation cost Rs.5000/- each workman in the interest of justice

and justice be done. The applicant shall ever pray”.

On notice, the respondents appeared. They filed detailed reply controverting the

averments made in the petition/statement of claim. Preliminary objections have been raised to the

effect that the claim petition is not maintainable in the present form. The petitioners are estopped

from filing the petition by their act, conduct and acquiescence. All the petitioners are the regular

employees of the Board (respondent). They do not fall within the purview of the Industrial Disputes

Act, 1947 (‘the Act’ for short) and are not entitled to file the petition. The claim put forth by the

petitioners is time barred. Their services were regularized way back in the year 1997. The

petitioners joined as such without any protest. The instant industrial dispute was raked up by them

in the year 2004 i.e. after the lapse of seven years from the date of the regularization of their

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services. On merits, it has been owned that the services of the petitioners were engaged as daily

wagers and were regularized in the year 1997. The promotion or regularization varies from worker

to worker working in a Division and the vacancies in a particular Division or wing of the Electricity

Board. The regularization of daily waged workers was ordered in terms of the settlement arrived at

before the Hon’ble Supreme Court of India in Civil Writ Petitions No. 788/1987, 705/1987 and

398/1988. In the above numbered writ petitions, a settlement took place with regard to the

regularization of daily paid workers working in various units of the Board. As per the settlement,

the regularization is to be strictly made on the basis of seniority of each category of daily paid staff

subject to the availability of the posts and no new posts are/were to be created. The petitioners were

junior workmen at the time of the settlement. Their seniors were considered as per the settlement

for regularization against the available vacancies. The seniority list of daily waged workers is

maintained at divisional level. After the settlement, some regularizations were made against the

vacancies available in the concerned Division. The workers of other Divisions could not be

regularized against the vacancies despite the fact that they are/were seniors being divisional level

cadre. The claim of the petitioners for seniority or regularization from back date against the

vacancies of other Divisions is not tenable. Work-charge status has been given to the petitioners as

per seniority and on the availability of the posts. The orders of the Hon’ble Apex Court are being

complied with in their letter and spirit. HPSEB (Himachal Pradesh State Electricity Board) has

made its own service rules prior to the year 1997. As per the criteria fixed by the Board, work-

charge status is given to those workers, who have completed five years of service. It stands

admitted that the representations were received from the petitioners. No retrospective seniority can

be awarded to the petitioners (as claimed) as per the policy of the Board. In these circumstances,

the respondents pray that the petition in hand be dismissed with costs.

In the rejoinder, the petitioners have reiterated the contents of the petition and

refuted the objections put forth by the respondents. It has been pleaded that the settlement arrived at

in CWPs No. 788/1987, 705/1987 and 398/1988 is not applicable since in the year 1994, the

Government of Himachal Pradesh modified the regularization scheme for work-charge status

employees. On the basis of this scheme, more than fifteen thousand workmen have been

regularized by the State Government from time to time.

Vide order dated 01.4.2011, following issues were struck by my ld. Predecessor:

Whether the regularization of the petitioners in the year Feb, 1997 is

violative of the policy envisaged by the respondent, and the petitioners were

liable to be regularized after completion of 10 years of continuous service as

alleged. If so, to what relief the petitioner is entitled to?

. .OPP

Whether the petition is not maintainable as alleged. If so, to what effect?

. .OPR

Whether the reference is hit by the vice of delay and laches as alleged. If so,

to what effect?

. .OPR

Relief.

I have heard the ld. counsel/AR for the parties and have gone through the case file.

For the reasons detailed here under, my findings on the above issues are as follows:-

Issue No.1 : Partly Yes, Partly No

Issue No.2 : Not pressed

Issue No.3 : No

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Relief. :

Claim petition allowed in part vide operative portion of the Award.

REASONS FOR FINDINGS

ISSUE NO.1

Shri Bal Krishan (one of the petitioners) stepped into the witness box as PW1. In his

affidavit Ex. PW1/A submitted under Order 18 Rule 4 CPC, he reiterated on oath the contents of

the petition/statement of claim in its entirety. He also proved Ex. PW1/B i.e. the demand notice

served by the petitioners on the respondent/Board. In the cross-examination, he denied that he has

deposed falsely and they (petitioners) have instituted a phoney petition.

Conversely, Shri Satish Kumar Sharma, Resident Engineer, Bassi Power House,

Bassi, Joginder Nagar (respondent) testified as RW1. In his affidavit Ex. RW1/A filed in

accordance with Order 18 Rule 4 CPC, he corroborated on oath the contents of the reply filed by

him. In the cross-examination, he stated that the scheme prepared by the Government of Himachal

Pradesh (as approved by the Hon’ble Apex Court in Mool Raj Upadhayay’s case) is not applicable

to the employees of the Electricity Board. He admitted that the work charge-status is being given to

the employees by the Board even now. Self stated, the status is given subject to the availability of

the posts. He admitted that the notifications issued by the Government of Himachal Pradesh are

applicable to the Board. He admitted that the petitioners had completed 240 days of work in each

calendar year of their employment. He also admitted that their services were regularized in the year

1997.

10.

Mark-A is the copy of the order dated April 19, 1994 passed by the Hon’ble

Supreme Court of India in Civil Writ Petition (Civil) Nos. 787/1987 titled as Sh. Mool Raj

Upadhyaya vs. State of Himachal Pradesh & Ors.

11.

Mark-B is the copy of the order dated 20th May, 1991 pronounced by the Hon’ble

Apex Court in Writ Petition (Civil) No. 788/1987 with Civil Writ Petitions Nos. 705/1987 and

398/1988 titled as Giri P.H. Danik Karamchari Sangthan and Others vs. The State of Himachal

Pradesh and Others etc.

12.

Mark-C is the copy of the terms of settlement arrived at between the parties before

the Hon’ble Apex Court in Writ Petitions (Civil) No. 788/1987, 705/1987 and 398/1988.

13.

Relying upon the State of H.P. & Ors. vs. Gehar Singh, 2007 (113) FLR 434

(Supreme Court), Gauri Dutt & Ors., Petitioners vs. State of H.P., Respondent, Latest HLJ 2008

(HP) 366 and Ramesh Kumar, Petitioner vs. State of H.P. & Anr., Respondents, Latest HLJ 2010

(HP) 249, ld. counsel for the petitioners contended that since his clients had completed 10 years of

continuous service as on 31.12.1993 or had rendered one or more year of service, but had not

completed 10 years of service as on 31.12.1993, the work charge-status is/was required to be given

to them after the completion of 10 years of continuous service.

14.

On the other hand, ld. counsel for the respondents urged that the work-charge status

has been given to the petitioners as per the terms of settlement arrived at between the parties in

Civil Writ Petitions No. 788/1987, 705/1987 and 398/1988.

15.

To my mind, the argument advanced by the ld. counsel for the petitioners holds the

force and is sustainable. The copy of letter dated 28.8.2007 issued by the Electricity Board is there

on the record. It unfolds that the services of the daily waged workers of the Board are/were required

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to be regularized on completion of the required daily waged services as per the policy of the

Government. It appears that Mark-C was one time settlement between the parties to Civil Writ

Petitions No. 788/1987, 705/1987 and 398/1988. The said decision/settlement is not to operate as a

precedent.

16.

The respondent (RW1) in his cross-examination admitted that the notifications/

letters issued by the Government of Himachal Pradesh are applicable to the Board. He also

admitted that each and every petitioner had completed 240 days of work in a calendar year of his

employment.

17.

Since the petitioners were engaged in the years 1983, 1984 and 1985 as well as they

had completed 240 days of work in all the years, they were required to be given the work-charge

status w.e.f. 01.01.1994 as per the policy framed by the Government of Himachal Pradesh and in

view of the trite laid down in the rulings cited by their ld. counsel. The regularization of the

services of the petitioners was to take place on the basis of the availability of posts. To this limited

extent, the action of the respondents is bad in the eyes of law. All the petitioners are required to be

given the workcharge status w.e.f. 1st January, 1994. They are also entitled to the pecuniary

benefits arising, if any, on the grant of work-charge status from that date.

18.

This issue is decided accordingly.

ISSUE NO. 2

19.

Not pressed.

ISSUE NO. 3

20.

In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society

Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble Supreme Court that:

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

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

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

fact by showing the real prejudice and not as a merely hypothetical defence. No reference to

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

21.

In view of the trite laid down in this ruling, it cannot be said that the petition is hit

by the vice of delay and laches. Of course, the delay in raising the industrial dispute by a workman

can be taken into account by the Court while granting him the relief(s) claimed.

22.

This issue is decided in favour of the petitioners and against the respondent.

RELIEF (ISSUE NO. 4)

23.

As a sequel to my findings on the various issues, the instant claim petition succeeds

in part and the same is partly allowed. It is held that the petitioners are entitled to the work-charge

status w.e.f. 01.01.1994. They are also entitled to all the consequential benefits arising after having

been brought on work-charge status w.e.f. 01.01.1994. Parties to bear their own costs.

24.

The reference is answered in the aforesaid terms.

25.

A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

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26.

File after due completion be consigned to the Record Room.

Announced in the open Court today this 20th day of July, 2012.

By order,

RAJAN GUPTA,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

________

IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No. : 57/2011

Date of Institution : 18.05.2011

Date of Decision : 04.07.2012

Shri Bala Ram s/o Shri Bhagat Ram, r/o Village Jhadyar, P.O. Kango Ka Gehra, Tehsil

Sarkaghat, Distt. Mandi, H.P.

….Petitioner.

Versus

The Executive Engineer, HPPWD (B&R) Division, Dharampur, District Mandi, H.P.

….Respondent.

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

For the Petitioner :

Sh. Suresh Kumar Sharma, Adv.

For the Respondent :

Sh. Sanjeev Katoch, Dy.D.A.

AWARD

The below given reference has been received from the appropriate Government for

adjudication:

“Whether retrenchment of services of Sh. Bala Ram s/o Sh. Bhagat Ram, by the Executive

Engineer, HPPWD (B&R) Division, Dharampur, Tehsil Sarkaghat, Distt. Mandi, w.e.f.

08.7.2005 vide notice dated 04.7.2005, without following the provisions of the Industrial

Disputes Act, 1947 is legal and justified? If not, to what back wages, service benefits and

relief the above named worker is entitled to from the concerned employer?”

The case of the petitioner (as set out in the statement of claim/demand) is that his

services were engaged as daily rated beldar by the respondent on 21.11.1998. He worked as such

up-to 07.7.2005. On 08.7.2005, his services were terminated by the respondent wrongly and

illegally. No seniority list as per law has been prepared by the respondent. The persons junior to

him (petitioner) are still working with the respondent/department and their services have been

regularized. The respondent has failed to adhere to the principle of ‘last come first go’. He

(petitioner) was engaged for doing the work of permanent nature which is still continuing. The

Government of Himachal Pradesh vide notification dated 07.9.1992 conferred the powers of

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specified authority for the purpose of Section 25-N of the Industrial Disputes Act, 1947 (‘the Act’

for short) upon the Labour Commissioner, Himachal Pradesh. In other States also, concerned

Labour Commissioners are exercising the powers of the specified authority. In the instant case, the

HPPWD in order to facilitate his (petitioner’s) illegal retrenchment and retrenchment of the co-

workers, conferred the powers of the specified authority upon the Chief Engineer, Central Zone,

Mandi per notification dated 14.2.2005 issued by the Government of Himachal Pradesh. The Chief

Engineer directed the Executive Engineer to retrench him (petitioner) and his co-workers. The

Chief Engineer being one of the interested parties and directly related with his (petitioner’s)

employment did not provide proper opportunity of being heard to him (petitioner). He acted in a

biased and discriminatory manner as well as granted the permission to retrench him (petitioner) and

some other workers. The appointment of the Chief Engineer as specified authority is wrong, illegal

and void ab-initio. In the month of April, 2005, the respondent/department served a notice under

Section 25-N of the Act upon him (petitioner) and the other workers. Civil Writ Petition No.

486/2005 was filed before the Hon’ble High Court of Himachal Pradesh challenging the

notification dated 14.2.2005. Reply to the writ petition was preferred by the respondent. When the

civil writ petition came up for hearing before the Hon’ble High Court, it was observed orally by the

Hon’ble Court that such type of notifications are not sustainable in the eyes of law. The State of

Himachal Pradesh then rescinded the notification dated 14.2.2005 and conferred the powers of the

specified authority under Section 25-N of the Act once again upon the Labour Commissioner. The

Hon’ble High Court while disposing of the writ petition directed the competent authority to look

into the legal sanctity of notification dated 14.2.2005 and the permission granted by the Chief

Engineer resulting in his (petitioner’s) retrenchment and the retrenchment of the other workmen.

The notification dated 14.2.2005 was issued by the department solely with a view to terminate his

(petitioner’s) services. At the time of his disengagement sufficient work and funds were available

with the respondent/department. He (petitioner) had completed 240 days of work in a block of 12

calendar months preceding the date of his termination. The act and conduct of the respondent is

highly illegal and unjustified. The same is also violative of Sections 25-F, 25-G and 25-H of the

Act. From the date of his disengagement, he is unemployed, having no source of income.

As such, as is apparent from the prayer clause of the petition/statement of claim, the

petitioner has claimed the following relief(s) in this petition:

“i.

That the notification dated 14.2.2005 bearing No. shram (A) 4-1/2005 may kindly be

declared wrong and illegal and be set aside.

ii.

The permission granted by the specified authoritycum-Chief Engineer, Central Zone

Mandi under Section 25(N) of the Industrial Disputes Act, 1947 for the