jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
f”keyk] lkseokj 10 fnlEcj] 2012@19 vxzgk;.k] 1934
fgekpy izns'k ljdkj
HIMACHAL PRADESH ELECTRICITY REGULATORY COMMISSION SHIMLA
NOTIFICATION
Shimla, the 7th December, 2012
No. HIMACHAL PRADESH ELECTRICITY REGULATORY COMMISSION/418.-
In exercise of the powers conferred by section 181, read with sections 39, 40, and 42 of the
Electricity Act, 2003 (36 of 2003), and all other powers enabling it in this behalf, the Himachal
Pradesh Electricity Regulatory Commission, after previous publication, hereby makes the following
regulations to amend the Himachal Pradesh Electricity Regulatory Commission (Grant of
Connectivity, Long-term and Medium-term intra-State Open Access and Related Matters)
Regulations, 2010:-.
REGULATIONS
1. Short title and commencement.—(1) These Regulations shall be called the Himachal
Pradesh Electricity Regulatory Commission (Grant of Connectivity, Long-term and Medium-term
intra-State Open Access and Related Matters) (First Amendment) Regulations, 2012.
186&jkti=@2012&10&12&2012
¼5409½
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(2) These Regulations shall come into force from the date of their publication in the
Rajpatra, Himachal Pradesh.
2. Amendment of Regulation 2.—In regulation 2 of the Himachal Pradesh Electricity
Regulatory Commission (Grant of Connectivity, Long-term and Medium-term intra-State Open
Access and Related Matters) Regulations, 2010 (hereinafter called “the said Regulations”)-
(i) in clause (5) the word “State” shall be substituted by the word “state”; and
(ii) the following clause (5-A) shall be added; namely : -
“(5-A)’’consumer” means any person who is supplied with the electricity
for his own use by a licensee or the Government or by any other person engaged
in the business of supplying electricity to the public in the State of Himachal
Pradesh under the Act or any other law for the time being in force and includes
any person whose premises are connected for the purpose of receiving electricity
with the works of licensee, the Government or any such other person, as the case
may be;
3. Amendment of Regulation 3.—In the first proviso to regulation 3 of the said
Regulations after the words “distribution system”, the signs comma and the words “unless already
connected,” shall be inserted.
4. Insertion of Regulation 3-A.—After regulation 3 of the said Regulations, the
following regulation 3-A shall be inserted, namely:-
“3- A. Eligibility for Open Access.—(1) Subject to the provisions of these regulations and
of sub-sections (2), (3) and (4) of section 42 of the Act, the open access to the distribution system
of the distribution licensee is permitted to all the consumers who either –
(i) require a supply of electricity, for their own use, with the contract demand exceeding
one MVA; or
(ii) have installed captive generating plants and require open access to the distribution
system for conveyance of power to the destination of use at the consumer premises:
Provided that the Commission may, by order, permit open access in the distribution system
to other consumers, subject to such terms and conditions and at such time, as it may consider
feasible:
Provided further that the Commission may, after considering the operational constraints and
the merits of each case before it, permit open access to the distribution system to such consumers,
who have contract demand of 1 MVA or less and require power for their own use from the
renewable energy generating sources located in Himachal Pradesh.
(2) Subject to sub-regulation (1) and other provisions of these regulations, the licensees,
generating companies, captive generating plants and such consumers who have been permitted
open access under sub-regulation (1) are eligible for open access to the intra-State transmission
system of the State Transmission Utility or of any transmission licensee and the same shall
accordingly be so granted on payment of transmission and other charges as applicable.
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(3) Subject to sub-regulation (1) and other provisions of these regulations, the licensees,
generating companies, captive generating plants and such consumers who have been permitted
open access under sub-regulation (1) are eligible for open access to the distribution system of the
distribution licensee and the same shall accordingly be so granted on payment of wheeling and
other charges as applicable.
(4) A person having been declared insolvent or bankrupt or having outstanding dues, of
more than two months’ billing, to the distribution/transmission licensee at the time of application
shall not be eligible for open access:
Provided that where the dispute regarding outstanding dues is pending before any Forum or
Court of law and the stay is granted, in that case the person shall be eligible for seekingopen
access.”
5. Amendment of Regulation 4.—In regulation 4 of the said Regulations for the words
“State Load Despatch Centre”, the words “distribution licensee” shall be substituted.
6. Amendment of Regulation 6.—In regulation 6 of the said Regulations-
(a) for the opening words “The application”, the words, figure, alphabet and sign
“Subject to regulation 33-B, the application” shall be substituted; and
(b) at the end the following “Note” shall be added, namely:-
“Note.-In cases where two or more intra State systems are involved, the application fee
shall be equally apportioned between them by the nodal agency”.
7. Amendment of Regulation 11.—In regulation 11 of the said Regulations, the sub-
regulations (3), (4), (5) and (6) shall be omitted.
8. Amendment of regulation 26.—In regulation 26 of the said Regulations, the
following subregulation (3) shall be added, namely:-
“(3) The Commission may, suo moto or on suggestions from the nodal agency, modify
the detailed procedure approved under sub-regulation (1) so as to facilitate smooth
implementation of these regulations.”
9. Amendment of Regulation 29.—In the regulation 29 of the said Regulations for the
words “HPERC (Terms and Conditions for Determination of Transmission Tariff) Regulations,
2007”, the words “Himachal Pradesh Electricity Regulatory Commission (Levy and Collection of
Fees and Charges by State Load Despatch Centre) Regulations, 2011”, shall be substituted.
10. Amendment of regulation 31.—In regulation 31 of the said Regulations,-
(i) in sub-regulation (1), the words “as estimated by the State Load Despatch Centre
and applied” shall be omitted; and
(ii) in sub-regulation (3), after the word “declared”, the words “by the respective
licensees” shall be inserted.
11. Amendment of Regulation-32.—In sub regulation (1) of regulation 32 of the said
Regulations, after the words “open access in transmission” and before the words “by the
distribution licensee” the word “and” shall be inserted.
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12. Insertion of Chapter-7-A.—After existing Chapter-7 of the said Regulations, a new
Chapter-7-A shall be inserted, namely:-
“CHAPTER-7-A
SPECIAL PROVISIONS FOR OPEN ACCESS IN DISTRIBUTION SYSTEM FOR THE
CONSUMERS
33-A. General.—In case of the consumers the provisions contained in this Chapter
shall be applicable for connectivity and long/medium term open access to the
distribution system.
33- B. Open access to existing consumers.—The existing consumers, who are
getting supply of electricity for their own use from the distribution licensee
under the standard supply agreements and are eligible for open access to the
distribution system as per regulation 3A, shall be provided connectivity and
open access to the distribution system to the extent of their sanctioned contract
demand:
Provided that such consumers shall arrange their electricity requirements
(power and energy) for their consumption, including the corresponding energy
losses for the various power systems involved in the open access which shall
be borne in kind, with the concerned supplier(s) and shall so inform all the
concerned agencies well in advance:
Provided further that where inter–state transmission system is involved in
conveyance of power from the source of power to the consumer premises, the
requisite permissions shall be obtained in accordance with the procedures laid
down by the Central Electricity Regulatory Commission in their open access
Regulations:
Provided further that such existing consumers shall enter into suitable
separate agreements with licensee (s) for availing such open access well
before the intended date of availing open access:
Provided further that, if there is no increase in contract demand-
(i)
such existing consumers shall not be required to pay any
application fee for connectivity,
(ii)
such consumers shall pay the application fee for medium term
and long-term open access at rate equivalent to 25% of the
rate specified in regulation 6:
Provided further that such existing consumers shall also clear their dues
against their existing electricity supply connections before availing such open
access.
33-C. Connectivity and Open Access to the prospective consumers.—In case of
prospective consumers seeking connectivity and long/medium term open
access from the distribution licensee for receiving electricity for their own use
or the existing consumers seeking increase in the existing sanctioned contract
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demand, the terms and conditions as applicable to the prospective consumers
or the existing consumers, as the case may be, under the Supply Code, the
Himachal Pradesh Electricity Regulatory Commission (Recovery of
Expenditure of Supply of Electricity) Regulations, 2012 and the Himachal
Pradesh Electricity Regulatory Commission (Licensee’s Duty for Supply of
Electricity on Request) Regulations, 2004 shall be applicable.
33-D. Restrictions on delivery of power.—In case of any operational constraints in
the transmission system and/or distribution system, the distribution licensee
may restrict/stagger the delivery of the electricity to the open access
consumers in the same manner as applicable to other HT consumers in the
area and such consumers shall restrict their drawl of electricity accordingly:
Provided that a distribution licensee shall not restrict the delivery of
electricity due to the reasons of energy shortage in cases where the open
access consumer-
(i)
is connected to the distribution system through a dedicated feeder
emanating from the control sub-station of the licensee; and
(ii)
the day ahead scheduling is being done for drawl of electricity by the
consumer in accordance with the regulation 33-G and the required
quantum of electricity is being injected to the distribution system in
the relevant time blocks for delivery to the consumer for his own use.
33-E.
Arrangements for standby power.—The consumers availing open access
shall also tie up the supply of standby power under various eventualities such
as non-scheduling of power from the generation source due to any reasons,
including outages at the generation source which may be of planned, forced or
emergent nature, and constraints in transmission system(s):
Provided that such open access consumers may get such standby power
from the distribution licensee at mutually agreed terms and conditions:
Provided further that in case of supply of the standby power by the
distribution licensee, the rate (inclusive of wheeling charges, cross subsidy
surcharge, additional surcharge and energy losses) for supply of such power at
consumer’s premises shall not exceed 125% of the overall average rate,
worked out by adopting load factor of 60%, under temporary supply tariff
approved by the Commission for supply of power to the other HT consumers
in the area.
33-F.
Violation in sanctioned contract demand.—The consumer availing open
access shall not exceed the contract demand sanctioned in his favour at any
time and in case of any violations in any time block the distribution licensee
shall be entitled to recover the violation charges as may be fixed by the
distribution licensee without prejudice to its rights to disconnect electricity of
such consumers.
33-G. Scheduling.—(1) Subject to the provisions of sub-regulations (2), scheduling
on day ahead basis shall be done by the State Load Despatch Centre in
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accordance with the applicable Grid Code for the consumers availing open
access.
(2)
In case the inter-state transmission system in not involved in
providing open access to a consumer and the sanctioned contract
demand of the consumer does not exceed 5.5 MVA or such other
limit as may be fixed by the Commission, day ahead scheduling shall
not be done for such consumers and in such cases the distribution
licensee and the open access consumer shall mutually agree on terms
and conditions as well as the procedures for settlement of time
differentiated energy accounts on the basis of weekly data:
Provided that the distribution licensee shall adopt uniform
principles for the purpose of evolving such terms and conditions and
procedures and shall include the same in the detailed procedure as per
Regulation 26:
Provided further that the generating station from which such
open access consumer has contracted power shall be subjected to
scheduling requirements as per the applicable Grid Code.
(3)
In cases where day ahead scheduling is not done in accordance with
subregulations (2), the concerned parties shall also mutually agree
about the procedures for accounting of applicable energy losses and
reactive energy.
33-H. Renewable power purchase obligations.—Each consumer availing open
access shall fulfill its Renewable Power Purchase Obligation (RPPO) as per
the Himachal Pradesh Electricity Regulatory Commission (Renewable Power
Purchase Obligation and its Compliance) Regulations, 2010.
33-I.
Metering.—(1) In cases where day ahead scheduling is to be done for any of
the time block(s) in accordance with regulation 33-G, the metering
arrangements shall be compatible to the requirements of such scheduling and
also have the features of the special energy meters as per Annexure-II of the
Grid Code.
(2) In cases where the day ahead scheduling is not to be done for any of the
time block(s) in accordance of regulation 33-G, the metering arrangements
shall be compatible with the requirements as per the arrangements tied up by
the consumersfor purchase of power and for delivery of power to them.
33-J.
Applicability of Codes.—The consumers availing open access shall also be
governed by the provisions applicable to the consumers under the Supply
Code, Grid Code and Distribution Code.
33-K. Multiple source of Power.- In case the consumer ties up his power
requirement from more than one sources, the energy accounting etc. and other
adjustments shall be done in accordance with the principles to be incorporated
in the detailed procedure.
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33-L
Overriding effect.—In case of any conflict of provisions contained in this
Chapter with the general provisions contained in other Chapters of these
regulations, the special provisions contained in this Chapter shall have
overriding effect in the matters relating to connectivity and open access to the
consumers in the distribution system”.
By the order of the Commission
-Sd-
Secretary.
_________
HIGH COURT OF HIMACHAL PRADESH, SHIMLA-71 001
NOTIFICATION
Shimla, the 4th December, 2012
No. HHC/Admn.16 (15)74-V.—Hon’ble the Chief Justice, in exercise of the powers vested
in him U/S 139(b) of the Code of Civil Procedure, 1908, U/S 297(b) of the Code of Criminal
Procedure, 1973 and Rule 5(vi) of the H.P. Oath Commissioners(Appointment & Control) Rules,
2007 has been pleased to appoint Sh. Sunil Kumar, Advocate, Solan as Oath Commissioner at
Solan, H.P. for a period of two years, with effect from 6.12.2012, for administering oaths and
affirmations on affidavits to the deponents, under the aforesaid Codes and Rules.
By order,
Sd/-
Registrar General.
_______
HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171 001
NOTIFICATION
Shimla, the 5th December, 2012
No. HHC/Admn.16 (21)75-IV.—Hon’ble the Chief Justice, in exercise of the powers
vested in him U/S 139(b) of the Code of Civil Procedure, 1908, U/S 297(b) of the Code of Criminal
Procedure, 1973 and Rule 5(vi) of the H.P. Oath Commissioners (Appointment & Control) Rules,
2007 has been pleased to appoint Sh. Surender Kumar and Ms. Nisha Devi, Advocates of H.P.
High Court as Oath Commissioners for the High Court of Himachal Pradesh, Shimla, with
immediate effect, for a period of two years, for administering oaths and affirmations on affidavits
to the deponents, under the aforesaid Codes and Rules.
By order,
Sd/-
Registrar General.
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HIGH COURT OF HIMACHAL PRADESH, SHIMLA
NOTIFICATION
Shimla, the 5th December, 2012
No. HHC/Admn.3 (139)/79.—13 days earned leave on and w.e.f. 17.12.2012 to 29.12.2012
with permission to affix Sundays falling on 16.12.2012 and 30.12.2012 is hereby sanctioned in
favour of Shri Kamal Kishore Sood, Deputy Registrar of this Registry.
Certified that Shri Kamal Kishore is likely to join the same post and at the same station
from where he proceeds on leave after the expiry of the above leave period.
Certified that Shri Kamal Kishore would have continued to officiate the same post of
Deputy Registrar, but for his proceeding on leave.
By order,
Sd/-
Registrar General.
________
By order,
Sd/-
Addl. Chief Secretary (Labour & Employment).
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IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, SHIMLA, (H.P).
Ref No. 74 of 2008.
Instituted on. 10.12.2008.
Decided on 6.10.2012.
President/General Secretary, B.C.S Workers Union (Affiliated to CITU), B.C.S School,
Shimla-2.
…Petitioner.
Vs.
The Principal/ Head Master, B.C.S School, Shimla-2.
…Respondent.
Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Already ex-parte.
AWARD
The following reference has been received from appropriate government for adjudication:
“Whether demands raised by the President/General Secretary, B.C.S Workers Union,
Shimla-2 (Affiliated to CITU) through their demand notice dated 18-7-2007 (copy
enclosed) to the Head Master, Bishop Cotton School, Shimla-171002 are proper and
justified? If yes, what relief and compensation the aggrieved workers of the school are
entitled to from above management?”
2. The petitioner has filed the claim stating that the thirty three workmen of the petitioner
union were retrenched by the respondent against the provisions of Industrial Disputes Act, 1947.
The petitioner union was registered and it had filed a memorandum before the respondent on
18.7.2007 with the request to implement the compromise arrived at between the parties in front of
Conciliation and Labour Officer on 9.3.2006. Despite said compromise on 6.12.2008, the
respondent retrenched the services of thirty three workers illegally. There was a memorandum of
settlement between the parties under section 12 (3) of Industrial Disputes Act on 25.4.2009
according to which respondent had agreed to take back twenty three workers. Hence, the claim was
filed with the prayer that termination of thirty three workers be declared illegal, null & void and all
of them be reinstated.
3. The petitioner got the claim amended and also stated that the respondent was not
adhering to the memorandum dated 18.7.2007. The respondent denied to implement the aforesaid
memorandum as well as compromise arrived at between the parties on 9.3.2006. Hence, prayer was
made directing the respondent to implement the aforesaid settlement.
4. The respondent contested the claim by filing a reply wherein preliminary objections as
to maintainability, suppression of material facts by the petitioner and estoppel were raised. On
merits, respondent admitted that the petitioner was union of the workmen. It was also admitted that
a memorandum of settlement was arrived at between the parties on 9.3.2006 under section 12(3) of
Industrial Disputes Act, 1947. The respondent also admitted that another settlement was also
arrived at between the parties on 18.7.2007. The respondent denied that the aforesaid settlement
was not being implemented. It was stated that the claim of petitioner was baseless and without any
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merits. In fact, the management and representatives of petitioner union agreed to settle the demands
as under:
(i)
The management has agreed to only consider the employ Shri Lagnu Ram against a
suitable vacancy as and when the same are in any case within the month’s time and
the replying respondents have employed Shri Lagnu Ram and he is doing the service
with the replying respondents.
(ii)
Regarding the promotion of the workers in the School Mess, the management ha
advised that Shri Jai Lal and Shri Prem Lal should go for training at the Food and
Catering Institute Kufri and after they have successfully completed the same, their
request for promotion as cook could be considered but they have not gone for the
training, but Shri Prem Lal was promoted as helper cook.
(iii)
Regarding the allotment of the accommodation, the management has agreed to allot
vacant accommodation on seniority basis (years of service at Bishop Cotton School,
Shimla) after a complete inspection of the allotted accommodation is conducted and
the replying respondents are making the allotment on seniority basis and on
availability of vacant accommodation for allotment.
(iv)
To grant the DA, the management has agreed to this fact after due approval from the
Board of Governors. The Board of Governors has approved 5% DA to the petitioner
claimant and that 5% DA has been paid to the petitioner.
(v)
So far as earned leave accumulation the management has agreed to accumulation of
10 days earned leave per completed year of the service upto a maximum of 100 days
only for the non vacation category of staff subject to seeing that the work in the
school is not dislocated/disturbed in any manner prior to leave being sanctioned by
the management.
(vi)
For union office due to constraints of space, it will not be possible to provide this
facility however, this will once again be referred to the Board of Governors for their
consideration but till today no decision has been taken by the Board of Governors.
This memo was signed by the petitioner and the respondents and copy of that memo
was sent to the Labour-cum-Conciliation Officer Shimla Zone, Shimla (HP). The
respondent was ready to fulfill all the conditions of the settlement. Consequently,
respondent prayed for the dismissal of the petition.
5.
No rejoinder was filed. On the pleadings of the parties, the following issues were
framed.
1.
Whether
the
demands
raised
by
petitioner
union
through
its
President/General Secretary through their demand notice dated 18.7.2007 are
proper and justified?
. .OPP.
2.
If issue no.1 is proved, to what relief and compensation the workers of the
petitioner union is entitled to?
. .OPP.
3.
Whether this claim petition is not maintainable?
. .OPR.
4.
Relief.
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6. The aforesaid issues were read over and explained to both the parties. No other issue
was pressed and claimed.
7. After petitioner evidence, the case was fixed for respondent’s evidence when nobody
appeared on behalf of respondent. Consequently, respondent was proceeded against exparte.
8. The exprte arguments of Ld. Counsel for petitioner were heard and I have gone
through the record also.
9. For the reasons to be recorded hereinafter my findings on the aforesaid issues are as
under:
Issue No. 1
Yes.
Issue No. 2
Twenty three retrenched employees of the petitioner union whose names are
mentioned in the list attached with Ex. C-1 are entitled to be reinstated without any
break in service and remaining ten retrenched employees shall be treated as per the
settlement Ex. C-1.
Issue No. 3
No.
Relief.
Reference answered in affirmative per operative part of award.
Reasons for finding
Issue No. 1 & 2.
10. Both these issues are interlinked and can be disposed of by a single finding.
11. From the careful perusal of the pleadings as well as evidence on record, it is
undisputed that there was a memorandum of settlement between the parties on 9.3.2006. On behalf
of petitioner Shri Chunni Lal Secretary of the union stepped into the witness box and he has filed
on record, the copy of said settlement dated 9.3.2006 Ex. P-3. He also tendered in evidence
registration certificate of petitioner union Ex. P-1 and the copy of demand notice is Ex, P-2. He also
deposed that the respondent did not implement the settlement Ex. P-3, consequently, another
demand notice dated 18.7.2007 Ex. P-4 was filed.
12. From the perusal of the original as well as amended claim filed by the petitioner, it is
clear that petitioner has alleged that thirty three employees/workmen were illegally terminated by
the respondent. The record is revealing that in order to resolve the controversy, a memorandum of
settlement was arrived at between the parties on 25.4.2009, copy of which is on record.
Inadvertently, it could not be tendered in evidence, so, in the interest of justice said memorandum
of settlement dated 25.4.2009 is admitted in evidence by this Court as Ex. C-1. This memorandum
is revealing that the respondent has agreed to take back twenty three dismissed employees list of
which is attached with Ex. C-1 and for remaining ten employees there was a settlement that the
employer has given offer of compensation package or independent enquiry against them and those
employees would give consent within five days whether to take offer of compensation or to face
enquiry which should be conducted by the SDM/ ADM, Shimla. During enquiry the employees
would get suspension allowances. The re-engaged twenty three employees shall not be treated as
surplus employees for retrenchment purpose and there shall be no break in their service.
13. In the light of said memorandum, the twenty three employees mentioned in the list
attached with Ex. C-1 are entitled to be reinstated without any break in service and the remaining
ten employees shall be treated in view of the terms and conditions of the aforesaid settlement Ex.
C-1.
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14. There is no other specific claim filed by the petitioner union. It is only alleged that the
respondent is not implementing the memorandum of settlement Ex. P-3. In reply, the respondent
has specifically admitted that the said memorandum of settlement. So, under law the respondent is
duty bound to fulfill all the terms and conditions of settlement dated 9.3.2006 arrived at between
the parties. There is no specific claim to the effect that which term or condition of said
memorandum was violated by respondent.
15. Accordingly, for the aforesaid reasons, it is hereby held that the demands raised by the
petitioner union through its President/General Secretary vide demand notice dated 18.7.2007 are
proper and justified and the twenty three retrenched employees of the petitioner union whose names
are mentioned in the list attached with Ex. C-1 are ordered to be reinstated without any break in
service and remaining ten retrenched employees shall be treated as per the settlement Ex. C-1. It is
further ordered that respondent is bound to implement all the terms and conditions of settlement Ex.
P-3.
16. Hence, for the aforesaid reasons, both these issues are answered in favour of the
petitioner.
Issue No. 3
17. From the careful perusal of the record, there is nothing to suggest that the petition is
not maintainable. Hence, this issue is decided against the respondent.
Relief
For the reasons recorded hereinabove, the claim of the petitioner union is allowed to the
effect that the twenty three retrenched employees of the petitioner union whose names are
mentioned in the list attached with Ex. C-1 are ordered to be reinstated without any break in service
and remaining ten retrenched employees shall be treated as per the settlement Ex. C-1. It is further
ordered that respondent is bound to implement all the terms and conditions of settlement Ex. P-3. In
view of said observation, the reference is answered in affirmative. 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 October, 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. 103 of 2007.
Instituted on. 24.9.2007.
Decided on 6.10.2012.
Mansa Ram S/o Shri Hazaru Ram R/o Village Sanahali, P.O Kandhar, Tehsil Arki, District
Solan, H.P.
…Petitioner.
Vs.
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The Senior Executive Engineer, Electrical Division, HPSEB Arki, District Solan, H.P.
…Respondent.
Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner
:
Shri Virender Thakur, Advocate.
For respondent
:
Shri Bhagwan Chand, Advocate.
AWARD
The following reference has been received from appropriate government for adjudication:
“Whether the termination of services of Shri Mansa Ram S/o Shri Hazaru Ram workman
by the Senior Executive Engineer, Electrical Division, HPSEB Arki, District Solan, H.P
w.e.f. 21.8.1994 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 above aggrieved workman is entitled to? ”
2.
The petitioner has filed the claim stating that he was engaged as beldar by the
respondent and worked at Sub Division, Darlaghat under Electricity Division, Arki District Solan
w.e.f. 26.3.1982. The services of petitioner were orally terminated on 20.2.1995. The petitioner
completed 240 days in one calendar year but no notice was given to him before termination and he
was also not paid any compensation. The junior workers were also engaged by the respondent after
the termination of petitioner. Hence, petitioner prayed that he be reinstated with all consequential
benefits alongwith back wages, seniority and continuity, as his services were terminated by the
respondent without complying with the provisions of Industrial Disputes Act, 1947.
3.
The respondent contested the claim by filing a reply wherein preliminary objections
as to maintainability and delay were raised. On merits, it was admitted that the petitioner was
engaged w.e.f. 26.3.1982. The respondent denied that the services of petitioner were orally
terminated on 20.2.1995. The petitioner did not work continuously during one calendar year for
240 days. In fact, the petitioner had left the job at his own and did not come again to join the
service. The petitioner did not work regularly and there were breaks in between. So, there was no
violation of any provisions of Industrial Disputes Act, 1947. Consequently, respondent prayed for
the dismissal of the claim petition.
4.
Petitioner filed rejoinder wherein he denied all the preliminary objections taken by
the respondent 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.
1.
Whether the termination of the services of Shri Mansa Ram petitioner by the
Senior Executive Engineer, Electrical Division, HPSEB Arki, District Solan
w.e.f. 21.8.1994 without complying the provisions of Industrial Disputes
Act, 1947 is improper and unjustified as alleged?
. .OPP.
2.
If issue no.1 is proved, to what relief of service benefits and amount of
compensation the petitioner is entitled to?
. .OPP.
3.
Whether the reference is not maintainable as alleged?
. .OPR.
4.
Whether the reference is hit by delay and latches?
. .OPR.
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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 in service with seniority and continuity but without back
wages.
Issue No. 3
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 & 2.
9.
Both these issues are interlinked and can be disposed of by a single finding.
10.
In order to prove his claim, the petitioner Mansa Ram stepped into the witness box
as PW-1 and deposed that his services were illegally terminated by the respondent without any
notice and compensation. He further stated that he completed 240 days in a calendar year during his
service. It was also deposed by him that the respondent had engaged junior workers after his
termination. He tendered in evidence the seniority list Ex. PA which was obtained by him under the
R.T.I Act.
11.
On the other hand, on behalf of respondent Shri Inder Singh, Junior Engineer
appeared in the witness box as RW-1 and deposed that the petitioner had worked till 20.8.1994 and
thereafter, he had left the job. He further deposed that petitioner never completed 240 days in a
calendar year prior to leaving of job. He produced on record mandays chart Ex. RW-1/A and notice
Ex. RW-1/B.
12.
In the light of pleadings as well as evidence on record, it is undisputed that the
petitioner was engaged by the respondent in the year 1982 as workman. Although, the petitioner
has alleged that he worked for 240 days in a calendar year prior to his termination but in support of
this contention, I do not find any convincing evidence on record on behalf of petitioner. The sole
testimony of petitioner is not sufficient to prove this fact. On behalf of respondent, the copy of
mandays chart Ex. RW-1/A from 1987 to 1994 was filed. The careful perusal of same is revealing
that petitioner never worked for 240 days in a calendar year. As the result, there is no question of
violation of section 25-F of Industrial Disputes Act, 1947.
13.
However, at the same time, the petitioner has alleged that junior workmen to him
were engaged after his termination. The respondent has taken the plea that petitioner himself had
left the job on 20.8.1994. But this plea of respondent cannot be accepted. It cannot be believed that
without any reason, the petitioner had left the job. Although, the respondent had placed on record
copy of notice Ex. RW-1/B issued to petitioner and three other workmen asking them to join the
duties but there is nothing on record whether said notice dated 22.12.1994 was received by the
5423
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petitioner or not. Moreover, there is nothing in said notice that petitioner had left the job on
20.8.1994. So, this notice Ex. RW-1/B would not be helpful to the respondent.
14.
The petitioner has placed on record the copy of seniority list Ex. PA which he
obtained under the Right to Information Act. This seniority list has not been disputed by the
respondent as no cross-examination of petitioner as to the said seniority list was conducted by the
respondent. Seniority list Ex. PA is revealing that after 20.8.1994 the respondent had engaged other
workers namely, S/Shri Dineshwar Sharma, Roshan Lal, Ramesl Pal, Trilochan Singh, Mast Ram
etc. The witness of respondent RW-1 Inder Singh in his cross-examination has expressed his
ignorance whether any junior workman was engaged after petitioner left the job. This evasive reply
on the part of witness of respondent is sufficient to suggest that he had not specifically denied the
plea of petitioner that in fact junior workmen were engaged by the respondent after the termination
of petitioner. Moreover, Ex. PA seniority list is sufficient to establish that junior workmen were
engaged by the respondent after the retrenchment of the petitioner. Hence, there is violation of
section 25-H of Industrial Disputes Act, 1947 as no opportunity was given to the petitioner to re-
employ him.
15.
Consequently, for the aforesaid reasons, certainly the termination of petitioner on
21.8.1994 is illegal and not sustainable under law being against the provisions of Industrial
Disputes Act, 1947.
16.
The present reference was received in this Court in 2007. So, it cannot be believed
that from 1994 to 2007, the petitioner remained without any job. It can be safely inferred that
during said period, the petitioner was gainfully employed. Therefore, the petitioner is not entitled to
any back wages. However, the petitioner is entitled to be reinstated with seniority and continuity in
service.
17.
Hence, for the aforesaid reasons, both these issues areanswered in favour of the
petitioner.
Issue No. 3
18.
From the careful perusal of the record, there is nothing to suggest that present
reference is not maintainable. Hence, this issue is decided against the respondent.
Issue No. 4
19.
For the reasons recorded hereinabove while deciding issues No. 1 & 3, the services
of petitioner were illegally terminated on 21.8.994 by the respondent without complying with the
provisions of Industrial Disputes Act, 1947. Therefore, there is no question of any delay and
latches. Hence, this issue is also decided 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 with seniority and continuity but without back wages. Let a copy of this award be sent to the
5424
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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 October, 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. 53 of 2009.
Instituted on. 10.8.2009.
Decided on 6.10.2012.
Prem Singh S/o Shri Kalam Singh R/o VPO Kungalbalti, Tehsil Nankhari, District Shimla,
H.P.
. . Petitioner.
Vs.
The Divisional Manager, Forest Corporation, Rampur Division, District Shimla, H.P.
. . Respondent.
Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner :
Shri Dalip Kaith, Advocate.
For respondent :
Shri Balram Sharma, Advocate.
AWARD
The following reference has been received from appropriate government for adjudication:
“Whether the action of employer i.e Divisional Manager, Forest Corporation, Rampur
Division, District Shimla, H.P to terminate the services of Shri Prem Singh S/o Shri
Kalam Singh on being absent from duty vide orders dated 4.6.2005 without any notice
and compensation is proper and justified? If not, what relief of service benefits
including seniority and compensation the above aggrieved worker is entitled to? ”
2. The petitioner has filed the claim stating that he was working as field-man on daily
wages with the respondent since June, 1992 and continued to work till 3.6.2005. On 4.6.2005, his
services were illegally terminated vide order no. 43/2005. The termination of petitioner was against
the mandatory provisions of Industrial Disputes Act, 1947. No opportunity of being heard was
given to him as before his termination no notice was served upon him. Hence, the claim petition
was filed with the prayer to set aside the termination order and to reinstate him with all
consequential service benefits.
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3. The respondent contested the claim by filing a reply wherein preliminary objections as
to suppression of material facts by the petitioner, maintainability, locus standi of petition and
estoppel were raised. On merits, the respondent admitted that the petitioner was engaged on daily
wages in June, 1992 as field-man-cum-Chowkidar. He was terminated on 4.6.2005 because he was
found absent from his duties which led to theft of timber in the night on 8.5.2005. The notice dated
20.5.2005 was served upon the petitioner to explain his position within ten days but the petitioner
failed to file any reply. Consequently, an enquiry was conducted wherein he was found
guilty as the result, his services were terminated. Accordingly, respondent prayed for the dismissal
of the claim petition.
4. Petitioner did not file any rejoinder. On the pleadings of the parties, the following
issues were framed.
1. Whether the services of petitioner vide order dated 4.6.2005 were terminated by
the D.M Forest Corporation, Rampur Division, District Shimla, H.P in an illegal
and unjustified manner without notice and compensation as alleged?
OPP.
2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is
entitled to and from wom?
OPP.
3. Whether the claim of the petitioner is not maintainable?
OPR.
4. Whether the claim of the petitioner is bad for non-joinder and misjionder of
necessary parties?
OPR.
5. Relief.
5. 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.
6.
I have heard both the parties and gone through the record carefully.
7. 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 but without back
wages.
Issue No. 3
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:
8. After hearing both the parties and going through the record carefully, I am of the
considered opinion that the services of the petitioner on 4.6.2005 were illegally terminated by the
respondent without giving him any opportunity of being heard. The termination of petitioner is
against the principles of natural justice and not sustainable under law.
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9. It is not disputed fact that the petitioner was working as daily wages employee under
the respondent since June, 1992. It is also not disputed that his services were terminated on
4.6.2005 vide termination order Ex. RW-1/E. Petitioner Prem Singh stepped into the witness box as
Pw-1 and deposed that he was not at fault for the theft of timber on 8.5.2005 because on that day he
was on election duty at Rampur whereas at Narkanda where the theft was committed, Shri Man
Bahadur and Beer Singh were on duty. He also deposed that he was not given any opportunity of
being heard and he denied that any notice was served upon him.
10. On behalf of respondent Shri Ashok Negi, Divisional Manager, Forest Corporation
Rampur appeared in the witness box as RW-1and deposed that the petitioner was found absent
from duty on 8.5.2005 at Dhomri Forest Depot. And his absence led to the theft of timber. He
further deposed that earlier also the petitioner was in the habit of remaining absent without any
information and an enquiry was held wherein the petitioner wasfound guilty. He also deposed that
notice dated 20.5.2005 was served upon the petitioner to explain his position within ten days. He
tendered in evidence the information regarding the absence of petitioner Ex. RW-1/B, copy of
notice dated 20.5.2005 Ex. RW-1/C, the receipt of notice Ex. RW-1/D and copy of termination
order Ex. RW-1/E.
11. From the aforesaid evidence, it is clear that the respondent has alleged that on 8.5.2005
when the theft was committed, the petitioner was found absent from his duties. No attendance
register was produced in evidence by the respondent to show that in fact on 8.5.2005, the petitioner
Prem Singh was deputed at the Forest Corporation Depot. Dhomri from where the theft took place.
Here, the cross-examination of RW-1 Shri Ashok Negi is relevant as in his cross-examination he
has stated that on 8.5.2005 at Dhomri Depot as per record Shri Bir Singh and Man Bahadur were on
duty. He has not stated that petitioner Prem Singh was also on duty at Dhomri Depot on 8.5.2005.
Then, I failed to understand how petitioner could be liable for the theft from Dhomri Depot, on
8.5.2005.
12. So, in the light of aforesaid testimony of RW-1 Shri Ashok Negi, the petitioner cannot
be held liable. Consequently, the show cause notice dated 20.5.2005 Ex. RW-1/E has got no legal
consequences as it has been mentioned in the notice that the absence of petitioner from duty on
8.5.2005 led to the theft in question.
13. Moreover, RW-1 Shri Ashok Negi also tendered in evidence the copy of enquiry report
Ex. RW-1/F wherein petitioner Prem Singh was held guilty. This enquiry report is dated 11.5.2005
but the show cause notice Ex. RW-1/C was dated 20.5.2005. That means notice Ex. RW-1/C was
issued after the enquiry report Ex. RW-1/F. It established that prior to the enquiry no show cause
notice was issued to the petitioner. This fact goes to establish that the petitioner was not at all
associated during the enquiry. Therefore, certainly, the petitioner has been condemned unheard as
there is violation of principles of natural justice. On this ground also, the enquiry report Ex. RW-
1/F is not sustainable under law and on the basis of same, the petitioner could not be terminated
from service.
14. Hence, in the light of my aforesaid discussion, I find sufficient evidence on record to
suggest that petitioner was not on duty on 8.5.2005 at Forest Depot. Dhomri from where the theft
was committed. So, petitioner could not be held liable for the said theft. Further, it is also proved on
record that no opportunity of being heard was given to the petitioner as he was not associated
during enquiry. Therefore, the termination order of petitioner dated 4.6.2005 is not sustainable
under law and liable to be set aside.
15. Accordingly, for the aforesaid reasons, this issue is answered in favour of the
petitioner.
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Issue No. 2 :
16. For the reasons to be recorded hereinabove while discussing issues no.1, the
termination orders of the petitioner dated 4.6.2005 issue by respondent 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.
Issue No. 3 :
17. From the careful perusal of the record, there is nothing to suggest that the petition is
not maintainable. Hence, this issue is decided against the respondent.
Issue No. 4 :
18. The services of petitioner were terminated by Divisional Manager Forest Corporation,
Rampur and petitioner has challenged his termination order and petition has also been filed against
Divisional Manager Forest Corporation, Rampur. The record is revealing that earlier the petition
was filed against Divisional Forest Officer, Rampur but subsequently, the petition was amended
and the name of respondent was corrected as Divisional Manager Forest Corporation, Rampur,
District Shimla. Therefore, I do not find that petition is bad for non-joinder and mis-joinder of
necessary parties. Consequently, this issue is also decided 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 action of the employer i.e Divisional Manager Forest
Corporation, Rampur to terminate the services of the petitioner is improper and unjustified.
Consequently, the petitioner is entitled to reinstatement in service with immediate effect 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 6th day of October, 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. 82 of 2010.
Instituted on. 2.7.2010.
Decided on 12.10.2012.
Raju Shyam S/o Shri Lal Dass R/o Village Jalithi, P.O Batari, Tehsil Kumarsain, District
Shimla, H.P.
. . Petitioner.
Vs.
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1. M/s Navdeep Bioceuticals, Hill Top Industrial Estate, Jharmajri EPIP Phase-1 (Ext.)
Bhatoli Kalan Baddi, H.P through its Managing Director.
2. Shri Navdeep B. Singhal Director (P&A) M/s Navdeep Bioceuticals, Hill Top
Industrial Estate, Jharmajri EPIP Phase-1 (Ext.) Bhatoli Kalan Baddi, H.P.
. . Respondents.
Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner :
Shri Dinesh Kainthla, Advocate.
For respondent :
Already ex-parte.
AWARD
The following reference has been received from appropriate government for adjudication:
“Whether the termination of services of Shri Raju Shyam S/o Shri Ram Dass by the
management of M/s Navdeep Bioceuticals, Pvt. Ltd., Hill Top Industrial area,
Jharmajri Teshil Baddi, District Solan, H.P w.e.f. 15.9.2009 without following the
provisions of the Industrial Disputes Act, 1947 as alleged by the workman is proper
and justified? If not, to what relief and consequential service benefits Shri Raju
Shyam S/o Shri Ram Dass worker is entitled to from the above management?”
2. The petitioner has filed the claim stating that he was working with the respondent as an
Operator w.e.f. 1.6.2007. The initial salary of petitioner was Rs. 7,000/- and he was also entitled to
increments from time to time. The respondent company asked the petitioner to leave the job on
15.9.2009. The petitioner requested the respondent company not to terminate his service, but in
vain. The petitioner had worked continuously for more than 240 days in a calendar year prior to his
dismissal, so, his dismissal/termination was illegal and arbitrary as no notice was sent to him before
his termination. The petitioner raised a demand notice and consequently the present reference was
received in this Court.
3. The record is revealing that initially Learned Counsel Shri Nipun Diwedi, Advocate
put appearance on behalf of the respondents and prayed time to file reply. Subsequently, none
appeared on behalf of respondents, as the result, respondents were proceeded against ex-parte.
4. The ex-parte evidence of petitioner recorded.
5. The exprte arguments of Ld. Counsel for petitioner were heard and I have gone
through the record also.
6. After due consideration, the un-rebutted exparte evidence of petitioner is sufficient to
establish that he was working with the respondent company and his services were illegally and
wrongly terminated by the respondent company in violation of the provisions of Industrial Disputes
Act, 1947.
7. The petitioner Raju Shyam appeared in the witness box and filed his affidavit Ex. P-1
wherein he deposed that he was engaged by the respondent no.1 as an Operator w.e.f. 1.6.2007 and
he was asked to leave the job on 15.9.2009 without any reason. His testimony is also revealing that
he has worked for 240 days in a calendar year. He has also deposed that he was issued E.S.I Card,
copy of which is Ex. PW-1/B. This card is sufficient proof to establish that in fact the petitioner
Raju Shyam was employee of respondent no.1. The petitioner has further deposed that he had made
a representation to the Managing Director of respondent company copy of which is Ex. PW-1/C.
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He has categorically deposed that he worked continuously for two years without any break till
15.9.2009. Hence, he prayed to set aside his termination order and to reinstate him along-with all
service benefits and adequate compensation.
8. Since, on behalf of respondents no evidence, in any manner, whatsoever is adduced
and the testimony of petitioner also remains un-rebutted as no cross examination was conducted to
the petitioner, therefore, I am in agreement with the testimony of petitioner that he was engaged by
the respondent no.1 on 1.6.2007 and worked continuously till 15.9.2009 when his services were
terminated. I am also in agreement with the testimony of petitioner that he worked continuously for
240 days in a calendar year prior to his termination on 15.9.2009. Therefore, the petitioner is
entitled to get the protection of section 25-F of Industrial Disputes Act, 1947 which makes it
mandatory on the part of respondents to serve a notice of one month’s and to pay compensation to
the petitioner before terminating his services. But, no such steps were taken by the respondents
company before terminating the services of petitioner.
9. Accordingly, for the aforesaid reasons, the termination of petitioner dated 15.9.2009 by
the respondent no.1 is hereby set aside being illegal and not justified. As the result, the claim
petition is allowed to the effect that petitioner is hereby ordered to be engaged and reinstated in
service by the respondent no.1 with seniority and continuity in service. However, taking into
account the facts and circumstances of the case, the petitioner shall not be entitled to the back
wages. So, the petitioner is reinstated without any back wages.
10. In the light of these observations, the reference is hereby answered in negative as the
termination of petitioner by the respondent No.1 w.e.f. 15.9.2009 is not 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 12th day of October, 2012.
By order,
Sd/-
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
________
Ref. 29/2012
Sh Basar Lal V/s Xen, HPSEB Sunni
5/10/2012.
Present: Petitioner in person.
Shri Chandan Advocate for respondent.
Today, the petitioner present in the Court disclosed that he was to get nothing from the
respondent. Therefore, he did not want to file any claim. He prayed not to press the reference. To
this effect, statement of petitioner recorded. Consequently, the reference is decided accordingly in
view of the aforesaid statement of the petitioner. 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.
5/10/2012.
By order,
Sd/-
Presiding Judge,
Labour Court, Shimla.
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Ref. 31/2010
Sh Salinder Kumar V/s M.D. the Himachal energy Jabli , Solan
17.10.2012.
Present: Petitioners with Shri Niranjan Verma, Advocate.
Shri Rahul Mahajan, Advocate for respondent.
Today, both the petitioners present in the Court disclosed that they have settled the dispute
with the respondent. In the light of settlement, both the petitioners received cheque of Rs. 60,000/-
(Rs. Sixty Thousand only) each from the respondent and stated that they have no claim
against the respondent and also prayed not to press the claim petition and decide the reference in
the light of said settlement.
A joint statement of both the petitioners recorded. In view of the aforesaid settlement, they
have received cheque of Rs. 60,000/- (Rs. Sixty Thousand only) each from the respondent as full &
final settlement.
In the light of aforesaid settlement, the claim petition filed by the petitioners is hereby
dismissed. Consequently, the reference is answered in affirmative to the effect that the dismissal
from services of both the petitioners by the respondent w.e.f. 3.9.2008 is legal and justified and
now apart from the aforesaid payment of Rs. 60,000/- (Rs. Sixty Thousand only) each, both the
petitioners are not entitled to any service benefits from the respondent. The joint statement of both
the petitioners recorded today 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.
17/10/2012.
By order,
Sd/-
Presiding Judge,
Labour Court, Shimla.
________
Ref. 90/2010
Sh Naresh Kumar V/s HPTDC, Shimla
12.10.2012.
Present: Petitioner in person.
Shri Sanjay Kumar, Law Officer with Shri Virender Sharma, Advocate for respondent.
Today, petitioner disclosed that he has amicably settled the dispute with the respondent and
he has no claim against the respondent. As the result, he intended not to file any claim. Statement
of petitioner recorded.
The following reference was received from the appropriate government for adjudication:
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“Whether the penalties imposed upon Shri Naresh Kumar, Washer Boy by the
Managing Director, H.P Tourism Development Corporation Ltd. Ritz Annexe,
Shimla-1 by reducing his salary to the lowest stage of the time scale of pay for a period
of three years with cumulative effect and also disallowing future increments for three
years, is proportionate to his guilty? If not, to what relief of service benefits and
compensation the aggrieved workman is entitled to from above employer?”
In view of statement of the petitioner recorded today, the dispute has been amicably settled.
Hence, in the light of the statement of petitioner recorded today in the Court, the present reference
is decided accordingly and from this Court the petitioner is not entitled to any service benefits and
compensation in any manner whatsoever. The statement of petitioner 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.
12/10/2012.
By order,
Sd/-
Presiding Judge,
Labour Court, Shimla.
________
Ref. 95/2010
Sh Om Parkash V/s M/s Perfect security Parwanoo
3/10/2012.
Present: Shri R.K Khidta, Advocate for petitioner.
Shri V.K Gupta, AR for respondent.
Today, Ld. Counsel for petitioner disclosed that the parties have entered into a compromise,
as the result, the petitioner did not want to press this reference. For the said reason, the petitioner
has not filed claim also. Statement of Ld. Counsel for petitioner recorded. In the light of said
statement, the reference stands answered accordingly. Statement of the Ld. Counsel for the
petitioner 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.
3/10/2012.
By order,
Sd/-
Presiding Judge,
Labour Court, Shimla.
5432
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Ref. 31/2010
Sh Salinder Kumar V/s M.D. the Himachal energy Jabli , Solan
17.10.2012.
Present: Petitioners with Shri Niranjan Verma, Advocate.
Shri Rahul Mahajan, Advocate for respondent.
Today, both the petitioners present in the Court disclosed that they have settled the dispute
with the respondent. In the light of settlement, both the petitioners received cheque of Rs. 60,000/-
(Rs. Sixty Thousand only) each from the respondent and stated that they have no claim
against the respondent and also prayed not to press the claim petition and decide the reference in
the light of said settlement.
A joint statement of both the petitioners recorded. In view of the aforesaid settlement, they
have received cheque of Rs. 60,000/- (Rs. Sixty Thousand only) each from the respondent as full &
final settlement.
In the light of aforesaid settlement, the claim petition filed by the petitioners is hereby
dismissed. Consequently, the reference is answered in affirmative to the effect that the dismissal
from services of both the petitioners by the respondent w.e.f. 3.9.2008 is legal and justified and
now apart from the aforesaid payment of Rs. 60,000/- (Rs. Sixty Thousand only) each, both the
petitioners are not entitled to any service benefits from the respondent. The joint statement of both
the petitioners recorded today 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.
17/10/2012.
By order,
Sd/-
Presiding Judge,
Labour Court, Shimla.
________
IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL TRIBUNAL-
CUM-LABOUR COURT, SHIMLA, (H.P)
Ref No. 29 of 2007.
Instituted on. 28.3.2007.
Decided on 17.10.2012.
Sher Singh S/o Shri Nehal Singh R/o Village Teepra, House No. T-4-B (Near Railway
Water Pump), P.O Parwanoo, District Solan, H.P.
…Petitioner.
Vs.
The Managing Director, M/s Sinic Electronics Pvt. Ltd., Parwanoo, District Solan, H.P.
…Respondent.
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Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner
:
Shri J.C Bhardwaj, AR.
For respondent
:
Shri Rahul Mahajan, Advocate.
AWARD
The following reference has been received from appropriate government for adjudication:
“Whether the termination of services of Shri Sher Singh S/o Shri Nihal Singh
workman by the Management M/s Sinic Electronics Private Limited, Parwanoo,
District Solan, H.P w.e.f. 5.10.2004 without serving him charge sheet and without
holding any domestic enquiry and 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 above aggrieved workman is entitled to?”
2. The petitioner has filed the claim stating that he was appointed as an Engineer by the
respondent in September, 2003. The petitioner remained in the employment till 5.10.2004 when he
was illegally removed from the service. Consequently, petitioner raised demand notice. The
petitioner had usually come to attend his duties on 5.10.2004 but he was not allowed to enter the
gate of the factory and was stopped to resume his duties. The termination of petitioner was against
the provisions of Industrial Disputes Act, 1947 as no notice was served upon him. The petitioner
had worked for more than 240 days in a calendar year prior to his termination on 5.10.2004. The
petitioner also stated that the junior employees to him were retained in the employment and were
also engaged after his termination, thereby, respondent violated the provisions of section 25-G &
25-H of Industrial Disputes Act, apart from the violation of section 25-F of Industrial Disputes Act,
1947. Consequently, petitioner prayed to set aside his termination and to reinstate him with full
back wages, seniority and other consequential benefits.
3. The respondent contested the claim by filing a reply wherein preliminary objections as
to maintainability and competence of the petitioner to file the present claim petition were raised. On
merits, the respondent stated that petitioner was appointed as Production Engineer and he was
discharging the Managerial and Supervisory duties, so, he was not a workman. As the result, he
was not entitled to get any relief under the provisions of Industrial Disputes Act, 1947. The
respondent further stated that vide letter dated 15.9.2004, the petitioner was transferred from
Parwanoo to Chennai in terms of appointment letter but he did not join at Chennai. The petitioner
willfully abandoned the job whereas he was never terminated. Thetransfer orders were received by
the petitioner on 3.10.2004. A notice was sent to the petitioner asking him to join his duties at
Chennai but in vain. Since, the petitioner was not terminated, therefore, respondent prayed for the
dismissal of the claim petition.
4. Petitioner did not file any rejoinder. On the pleadings of the parties, the following
issues were framed.
1. Whether the termination of services of Shri Sher Singh petitioner by the
Management of M/s Sinic Electronics Pvt. Ltd., Parwanoo, District Solan, H.P
w.e.f. 5.10.2004 without serving his charge sheet and without holding any
domestic enquiry and without complying the provisions of the Industrial Disputes
Act, 1947 is improper and unjustified as alleged?
….OPP.
2. If issue no.1 is proved, to what relief the petitioner is entitled to?
…OPP.
3. Whether the claim is neither competent nor maintainable as alleged? …OPR.
4. Whether the petitioner is not a workman as alleged?
…OPR.
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5. Relief.
5. 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.
6. I have heard both the parties and gone through the record carefully.
7. For the reasons to be recorded hereinafter my findings on the aforesaid issues are as
under:
Issue No.1 Become redundant as petitioner himself abandoned the job.
Issue No. 2 Not entitled to any relief.
Issue No. 3 Yes.
Issue No. 4 No.
Relief. Reference is pre-mature and is answered accordingly.
Reasons for finding
Issue No. 1 & 4.
8. Both these issues are interconnected and can be disposed of by a single finding.
9. The respondent has alleged that the petitioner is not a workman as he was discharging
the duties of Manager and Supervisor.
10. After due consideration, I do not find any material on record to establish that the
petitioner was doing the duties of Manager or Supervisor. On behalf of respondent RW-1 Jai Singh,
Administrative Officer was examined who has given a general statement that there were 7/8
workers under the petitioner but no record was produced in evidence to show the names of the
workers who were working under the petitioner. There is nothing in evidence to show that the
petitioner was discharging the supervisory functions.
11. The petitioner has produced in evidence the copy of his appointment letter Ex. RC
revealing the terms and conditions of his appointment. Condition no.8 is relevant which is revealing
that the petitioner would observe the usual working hours and he would not be eligible for any
leave till the completion of 240 days (actual working days). This condition is sufficient to suggest
that in fact the appointment of petitioner was that of a workman and not that of a manager or
supervisor because there was stipulation of actual working days to the extent of 240 days.
Moreover, as discussed hereinabove there is no evidence on record to show that the petitioner was
discharging the function of a supervisor or manager. Consequently, it is hereby held that the
petitioner was engaged as a workman by the respondent.
12. Now, comes the question of alleged termination of services of the petitioner by the
respondent. Taking into account pleadings as well as evidence of the parties, I am of the considered
opinion that the respondent has never terminated the services of the petitioner. The material on
record goes to suggest that the petitioner himself has abandoned the job and after 5.10.2004 he has
not been coming to his duties.
13. The testimony of petitioner Sher Singh is revealing that he worked till 4.10.2004 and
thereafter he was not allowed to enter the main gate of the factory as the gate was closed for him.
The respondent has denied this allegation of the petitioner as is evident from the reply filed by the
respondent. Apart from the bald statement of petitioner, there is no other evidence on record on
behalf of petitioner in support of his allegation that the respondent company did not allow him to
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enter into the factory premises and the gate was closed for him. The petitioner could have examined
his fellow workman in support of his contention.
14. The evidence on record has also established that the petitioner was transferred to
Chennai vide copy of transfer order Ex. RD dated 15.9.2004. In view of testimony of petitioner he
did not get any transfer orders. First of all, we have to see whether petitioner could be transferred to
Chennai. Here, the appointment letter of petitioner Ex. RC is relevant. The condition no. 2 of
appointment letter is revealing that whenever there is necessity, the petitioner will be sent out-side
the city to carry out his duties and he is liable to be transferred to any place in India. That means the
transfer of petitioner to Chennai is strictly in accordance with the terms and conditions of his
appointment letter. So, the transfer of petitioner cannot be held as illegal.
15. The evidence on record has established that the petitioner has not joined at Chennai.
The petitioner has alleged that he was removed from the service and only in order to justify his
removal, the transfer orders were manipulated subsequently. In support of this contention, I do not
find any convincing material on record. Since, as per the terms and conditions of the appointment
letter of petitioner, he could be transferred to anywhere in India, so, his transfer to Chennai Branch
of respondent company was legal and valid. Being the employee of the respondent, petitioner was
duty bound to obey the transfer orders. It is undisputed fact that petitioner has not joined at Chennai
and after 4.10.2004, he has not been coming to his duties.
16. Here, the cross-examination of petitioner is relevant wherein he has categorically
stated that as on today he is not ready and willing to comply with the transfer orders. This
admission of petitioner is fatal. I am of the opinion that the petitioner has raised demand notice only
to frustrate his transfer orders to Chennai and under the garb of present reference, petitioner has
intended to frustrate his transfer orders and intended to remain at Parwanoo.
17. The witness of respondent RW-1 Jai Singh has stated that petitioner was only
transferred to Chennai but he did not obey the transfer orders. He has nowhere deposed that the
respondent has terminated the services of petitioner.
18. So, from the evidence on record, it is clear that petitioner Sher Singh is not interested
in going to Chennai on his transfer. That is why after his transfer orders he remained absent w.e.f.
5.10.2004. At the same time, it is also a matter of record that the services of petitioner has not been
actually terminated by the respondent, as till date, no termination orders have been passed by the
respondent. The respondent has alleged that the petitioner is not joining at Chennai and he is absent
from his duties since 5.10.2004. It is also a matter of fact that the respondent has not initiated any
disciplinary action against the petitioner for his absence from duties since 5.10.2004. So, legally
speaking the services of petitioner have not been terminated yet by the respondent. It is a different
issue that the petitioner is not joining his duties and for the same respondent being the employer is
entitled to initiate disciplinary action against the petitioner in accordance with law.
19. Hence, taking into account all the evidence and facts and circumstances of the case, it is
clear that the petitioner himself has abandoned the job and he wants to frustrate his transfer orders
to Chennai. I do not find any evidence on record to establish that the services of petitioner have
been terminated by the respondent w.e.f. 5.10.2004. Since, there is no termination order of the
petitioner, therefore, the issue no.1 has become redundant and consequently, the petitioner is not
entitled to any relief as I am of the opinionthat in the absence of termination orders of petitioner,
the demand notice raised by the petitioner is pre-mature and accordingly the reference received in
the Court is of no legal consequences and it cannot be answered being premature.
20. Hence, for the aforesaid reasons, issue no.1 is decidedhaving become redundant
whereas issue no.4 is decided against the respondent.
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Issue No. 2
21. For the reasons to be recorded hereinabove while discussing issues no.1 & 4, since
issue no.1 has become redundant, the petitioner is not entitled to any relief as prayed for by him.
Hence, this issue is decided against the petitioner.
Issue No. 3
22. For the reasons to be recorded hereinabove while deciding issue no.1, the claim filed
by the petitioner is neither competent nor maintainable. Hence, this issue is decided in favour of
respondent.
Relief
For the reasons recorded hereinabove, the claim of the petitioner is hereby dismissed as
there is no termination order of the petitioner. Hence, the claim petition is pre-mature and to my
mind the petition is not maintainable. Consequently, the reference has become redundant being
premature and is hereby 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 17th day of October, 2012 in the presence of
parties counsel.
By order,
Sd/-
Presiding Judge,
Industrial Tribunal-cum-Labour Court, Shimla.
________
Ref. 124/2010
Sh Tarsem Lal V/s Regalia Laminates Baddi
6/10/2012.
Present: None.
Case called twice but none is present on behalf of the parties. It is 10.50AM. Be called
again.
Presiding Judge,
Labour Court, Shimla.
Case called again after lunch.
Present: None.
It is 2.45 PM but none is present on behalf of the parties.
The following reference was received from the appropriate government for adjudication:
“Whether the verbal termination of the services of Shri Tarsem Lal S/o Shri Bhangi
Ram by the Managing Director, M/s Regalia Laminates, Plot no. 31 EPIP, Thana
Baddi, District Solan, H.P w.e.f. 29.10.2009 without serving charge sheet, without
holding enquiry and without complying with 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 workman is entitled to”
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The petition
er had availed opportunities to file petition in support of his claim. Having
availed so many opportunities, no claim petition was filed by the petitioner Tarsem Lal whose
services have been allegedly terminated and qua the same, the reference in question is received in
this Court.
Since, neither any claim petition nor any evidence is on record, hence, it cannot be held that
the termination of the services of petitioner Shri Tarsem Lal by the Managing Director, M/s Regalia
Laminates, Plot no. 31 EPIP, Thana Baddi, District Solan, H.P w.e.f. 29.10.2009 is illegal or
unjustified. Hence, the reference is answered in affirmative and consequently, the petitioner is not
entitled to any service benefit, in any manner, whatsoever. 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.
6/10/2012.
Presiding Judge,
Labour Court, Shimla.
_________
30.10.2012
Present: Shri Vineet Guleria, Advocate for petitioner.
Shri Jagdish Kanwar, Dy. DA for respondent.
Today the case was fixed for PWs. At this stage, Ld. Counsel for petitioner prayed to
withdraw the claim petition. Statement of Ld. Counsel recorded.
The following reference was received from appropriate government for adjudication:
“Whether the demand of Shri Rajesh Kumar S/o Shri Sher Singh thought Shri gopal
Jhilta, State Finance Secretary, Bhartiya Mazdoor Sangh HP for regularizing his
seniority w.e.f. October, 1999 when he was initially engaged by the employer as
alleged by the workman is proper and justified? If yes, what relief the above
workman is entitled to?”
The petitioner filed claim petition alleging that he was engaged by the respondent in
October, 1999 and he worked continuously and also completed 240 days in each calendar year. He
completed eight years of service in 2007 and in October, 2009 he completed ten years of service.
Therefore, petitioner prayed that his services be regularized and for the purpose of regularization,
his seniority be granted from October, 1999.
The claim of the petitioner was contested by the respondent by filing a reply wherein
respondent denied that petitioner continuously worked since October, 1999. It was also denied that
in each calendar year, the petitioner completed 240 days. It was stated that in the year 1999, the
petitioner only worked for 18 days, thereafter left the job and again resumed duties on 9.2.2004. He
worked for 203 days in 2004 and 154 days in the year 2010 upto 3.6.2010. Hence, the petitioner
was not entitled for regularization as well as seniority as claimed by him. Accordingly, respondent
prayed for the dismissal of the claim.
The petitioner filed rejoinder wherein he reasserted all the averments already made in claim
petition.
On the pleadings of the parties, the following issues were framed.
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1. Whether the demand of petitioner for regularizing his seniority w.e.f. October,
1999 is legal and justified?
…OPP.
2. If issue No.1 is proved, to what relief the petitioner is entitled to?
…OPP.
3. Whether this petition is not maintainable?
…OPR.
4. Relief.
The aforesaid issues were read over and explained to both the parties. No other issue was
pressed and claimed. Today, the case was fixed for the evidence of petitioner. At this stage, instead
of leading evidence, petitioner intended to withdraw this claim petition and Ld. Counsel for
petitioner made a statement not to press the claim petition. Thus, no evidence was led by the
petitioner in support of aforesaid issues, hence, in the absence of any evidence on behalf of
petitioner both the issues no.1 & 2 are decided against the petitioner.
From the careful perusal of the petition there is nothing to suggest that the petition is not
maintainable, hence, issue no.3 is decided against the respondent.
For the foresaid reasons, the petitioner is not entitled to any relief as prayed for by him.
Hence, the claim petition is hereby dismissed and issue no.4 is decided accordingly.
Since, the claim petition filed by the petitioner has been dismissed, hence, the reference is
answered in negative as it cannot be held that the demand of petition for regularizing his services
including seniority w.e.f. October, 1999 is justified and the petitioner is not entitled to any relief
whatsoever. 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.
Presiding Judge,
30.10.2012.
Labour Court, Shimla.
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