jkti=] fgekpy izns'k

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

f”keyk] ohjokj 24 tuojh] 2013@4 ek?k] 1934

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 14^th January, 2013

No. Sharm (A) 7-1/2005 (Award) –Loose.— In exercise of the powers vested in her under

section 17(1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to

order the publication of awards announced by the Presiding Officer, Labour Court, Dharamshala of

the following cases on the website of Labour & Employment Department:—

Sr. No Case No.

Title of the Case

Date of

Award

10/10

Smt./Shri Raghuvir Singh

M/D M/S Welson

3-10-2012

198/10

Rajeev Gupta

D.C, Kangra

3-10-2012

572/08

Suresh Kumar

B.D.O.

3-10-2012

(a) 268/12 Rajinder Kumar

Prncipal Chief Con. of

4-10-2012

Forest.

221&jkti=@2013&24&1&2013 ¼6123½

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2/07

Tej Pal

EE HPPWD Kullu.

5-10-2012

5 .

44/12

Ravi Dass

HPPWD Dharmpur

8-10-2012

6 .

54/12

Jai pal

HPPWD Dharampur

8-10-2012

22/12

Leela Devi

HPPWD Dharampur

8-10-2012

64/12

Ghambari Devi

HPPWD Dharampur

8-10-2012

26/12

Chaudhary Ram

HPPWD Dharampur

8-10-2012

10.

53/12

Leela Devi

HPPWD Dharampur

8-10-2012

11.

12/12

Beena Devi

HPPWD Dharampur

8-10-2012

12.

197/12

Dharam Pal

HPPWD Dharampur

8-10-2012

13.

151/12

Ram Sai

HPPWD Dharampur

8-10-2012

14.

56/12

Kamlesh

HPPWD Dharampur

8-10-2012

15.

4/12

Shakuntla

HPPWD Dharampur

8-10-2012

16.

23/12

Sarla Devi

HPPWD Dharampur

8-10-2012

17.

104/208

Vijay Bhadur

Proj. Manager HCCL

10-10-2012

18.

123/08

Suprian Tirki

-do-

10-10-2012

19.

236/12

Mandan Lal

M/S. Puri Oil.

11-10-2012

20.

298/09

Ghanshyam

DFO Mandi

12-10-2012

21.

623/08

Bhim Dev

EE HPSEB

12-10-2012

22.

445/08

Sohan Lal

MD Hotel Le Grand

12-10-2012

23.

566/08

Harish

MD. HP State Corp.

12-10-2012

24.

350/08

Churamani

MD. AD Hydro

12-10-2012

25.

662/08

Sher Singh

EE HPSEB

12-10-2012

26.

445/09

Jyoti Parkesh

EE HPSEB

12-10-2012

27.

115/07

Gulab Singh

EE HPSEB

15-10-2012

28.

93/07

Vice President

HP State Civil Supply

15-10-2012

29.

106/11

Ramesh Chaudhary

Distt. Incharge Dainik

16-10-2012

Jagaran.

30.

85/12

Vinod Kumar

SDM/Chairman

19-10-2012

Babaknath ji.

31.

86/12

Sanjay Kumar

-do-

19-10-2012

32.

87/12

Raj Kumar

-do-

19-10-2012

33.

90/12

Rajinder Kumar

-do-

19-10-2012

34.

92/12

Lal Singh

-do-

19-10-2012

35.

93/12

Sanjay kumar

-do-

19-10-2012

36.

94/12

Surinder Kumar

-do-

19-10-2012

37.

95/12

Sanjay Kumar

-do-

19-10-2012

38.

68/09

Narain Dass

Incharge Potato Dev.

1-8-2012

39.

570/08

Mohinder

I&PH

1-11-2012

40.

185/10

Deep Kumar

-do-

1-11-2012

41.

418/09

Guddo

-do-

1-11-2012

42.

111/11

Jagdish

HPPWD

1-11-2012

43.

265/10

Surender

HPPWD

1-11-2012

44.

113/11

Surinder

-do-

1-11-2012

45.

278/10

G.S. HPN KS

GM Small Hydro

2-11-2012

46.

99/06

Prem Lata

CDPO Bilaspur

3-11-2012

47.

95/10

Jatinder Thakur

Kullu sadar fruit

6-11-2012

48.

92/10

Gian Chand

M/S Suraj Fabric

8-11-2012

49.

622/08

Ishwar Dass Chairamn

Ex. Serviceman

8-11-2012

50.

432/08

Gandhi Ram

HPPWD Mandi

19-11-2012

51.

363/09

Chhaje Ram

HPSEB Mandi

19-11-2012

52.

172/07

Jawahar Singh

M/S Chamunda Trader

19-11-2012

53.

503/09

Moti Ram

S.O. D/Shala

19-11-2012

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54.

46/07

Naresh SE Largi

Const.

19-11-2012

55.

85/07

Subhash

-do-

19-11-2012

56.

593/08

Rajesh Kumar

HPPWD

26-11-2012

57.

594/08

Belu Devi

HPPWD

26-11-2012

58.

478/09

Muni Devi

DFO Lahaul

26-11-2012

59.

93/10

Ram Singh

HPSEB

26-11-2012

60.

219/10

Harbansh

HPSEB

26-11-2012

61.

126/11

Jasveer Kumar

Factory Manager Ranger

27-11-2012

62.

476/09

Kamla

Manager Sikand

1-12-2012

63.

124/08

Bir Bahadur

Project manager, HCCL,

1-12-2012

Chamba

64.

188/08

Ramu Bhaskay

-do-

1-12-2012

65.

81/08

Chandur Bahadur

-do-

1-12-2012

66.

78/08

Dalip Kumar

-do-

1-12-2012

67.

170/05

Ashok Kumar

E.E. HPPWD, Nurpur

1-12-2012

68.

269/12

Kamal Dev M/S

Abir Refrastructure

5-12-2012

69.

35/11

Ramesh Chairman

Ex-serviceman

6-12-2012

70.

34/11

Manoj

-do-

6-12-2012

71.

258/10

Jasivender

G.M. Suraj Fabric

6-12-2012

72.

18/11

Tek Chand

HPPWD Killar

10-12-2012

73.

66/11

Mohar Singh

-do-

10-12-2012

74.

08/11

Moti Ram

-do-

10-11-2012

75.

31/11

Amar Singh

-do-

10-12-2012

76.

272/10

Kanshi Ram

D.F.O.,Sunder Nagar

10-12-2012

77.

273/10

Om Parkesh

-do-

10-12-2012

78.

274/10

Bhup Singh

-do-

10-12-2012

79.

280/09

Radha Devi

Pradhan Vill. Edu.

10-12-2012

80.

54/08

Kishan

Dy. Director Agriculture

11-12-2012

81.

455/09

Khub Ram

-do-

11-12-2012

82.

264/10

Bahadur Singh

HPSEB, Gohar

11-12-2012

83.

310/12

Sohan Lal

G.M. TRG Industry Pvt.Ltd. 1-12-2012

84.

323/12

Kanta Devi

EE.PPPWD J/Nagar

12-12-2012

85.

325/12

Nirmla Devi

-do-

12-12-2012

86.

327/12

Pawana Devi

-do-

12-12-2012

87.

362/12

Kishori Lal

DFO. Joginder Nagar

14-12-2012

By order,

Sd/-

Addl. Chief Secretary,

(Labour & Employment .

________

IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR

COURT-CUM-INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref No.

: 12/2012

Date of Institution : 02.1.2012

Date of Decision : 08.10.2012

Smt. Beena Devi w/o Shri Ishwar Dass, r/o Village Banwar, P.O. Dharampur, Sub Tehsil

Dharampur, District Mandi, H.P.

..Petitioner.

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Versus

The Executive Engineer, H.P.P.W.D. (B&R) Division, Dharampur, Tehsil Sarkaghat,

District Mandi, H.P.

..Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, 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 Shri Ishwar Dass, r/o Village

Banwar, P.O. Dharampur, Sub Tehsil Dharampur, District Mandi, H.P. by the Executive Engineer,

H.P.P.W.D. (B&R) Division, Dharampur, Tehsil Sarkaghat, Distt. Mandi, H.P. w.e.f. 08.7.2005,

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 workman is entitled to from the

concerned employer?”

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

services were engaged as a daily wager on the muster rolls by the respondent w.e.f. December,

1998. She uninterruptedly worked as such up-to 07.7.2005. On 08.7.2005, her services were

disengaged by the respondent by issuing three months notice and paying the retrenchment

compensation as envisaged under Section 25-N of the Industrial Disputes Act, 1947 (‘the Act’ for

short). She had completed 240 days of work in each and every calendar year of her employment as

well as in a block of 12 calendar months preceding the date of her illegal retrenchment i.e.

08.7.2005. Before the termination of her services, the respondent has not provided any seniority list

of the daily wagers working under him (respondent). 35 persons junior to her (petitioner) namely

S/Sh. Subhash Chand, Shashi Kant and Bidhi Chand etc. have been retained in service by the

respondent. Shri Dharampal s/o Sh. Sarwan Ram was appointed as daily waged beldar by the

respondent in the month of November, 1998, whereas, the services of Sh. Shashi Kant were

engaged by the respondent in the year 2000. The persons junior to her (petitioner) were not

retrenched from service alongwith her. The respondent has not followed the principle of ‘last come

first go’. Not only this, one Smt. Mamta Devi w/o late Shri Hans Raj was appointed by the

respondent in the year 2000. She is/was junior to her (petitioner). Her services were also dispensed

with by the respondent w.e.f. 08.7.2005 alongwith her. Smt. Mamta Devi has been re-engaged by

the respondent in the year 2007. At the time of her re-engagement, an opportunity of re-

employment was not given to her (petitioner). In the month of September, 2009, 43 retrenched

workmen have been re-engaged by the respondent. At the time of their re-engagement, the principle

of ‘last come first go’ has not been adhered to. Junior retrenched workmen have been re-engaged

without providing an opportunity of re-employment to the seniors. The retrenchment orders dated

02.7.2005 and 04.7.2005 passed by the respondent have already been set aside by this Court and

confirmed by the Hon’ble High Court of Himachal Pradesh. The respondent has re-employed more

than 600 retrenched workmen. They have also been paid the compensation amounting to

Rs.50,000/- each. She (petitioner) is unemployed from the date of her disengagement. The act and

conduct of the respondent is illegal and unjustified. It also contravenes the provisions of Sections

25-G and 25-H of the Act.

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

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

“1. That the Hon’ble Court kindly be set aside the illegal retrenchment order passed by the

respondent dated 02.07.2005/04.07.2005 and directed to respondent to reinstate the

services of applicant with full back wages, seniority, in continuity of service with all

consequential service benefits.

2. The Hon’ble Court further directed to respondent to regularize the services of applicant

on the basis of policy framed by the State Government and on the basis of her seniority

fall in the cadre post.

3. The Hon’ble Court kindly be directed to respondent to pay the 9% interest on back

wages and pay the Rs.5000/- as litigation cost as well as counsel fee. And if any other

relief deemed fit may kindly be granted in the favour of applicant in the interest of

justice”.

3. 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 claim petition/reference is not maintainable since 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. She has suppressed the material facts

from the Court. The petitioner is estopped from filing the claim petition by her act and conduct.

On merits, it has been owned that the services of the petitioner were engaged as a daily

wager on the muster roll w.e.f. December, 1998 and she worked continuously as such up-to

07.7.2005. It stands admitted that the services of the petitioner were terminated w.e.f. 08.7.2005 by

taking recourse to the provisions of Section 25-N of the Act. The retrenchment of the daily wagers

has been ordered as per the decision of the Specified Authority-cum-Chief Engineer, Central Zone,

Mandi. Three months notice and retrenchment compensation were given to the petitioner. She was

also afforded an opportunity of being heard before the retrenchment. The fact that some junior daily

wagers are working in Dharampur Division of the HPPWD has been admitted. The juniors are

working due to the non-availability of the seniority of the workers who were transferred from other

Divisions/Sub Divisions. The retrenchment notices have also been given to the juniors who are

surplus. It stands admitted that the services of Smt. Mamta Devi were retrenched alongwith the

petitioner. She has been re-engaged on compassionate grounds as her husband Shri Hans Raj died

in an accident. In the month of September, 2009, 43 retrenched workmen have been re-employed

after obtaining the le gal opinion from the Law Department and sanction from the Chief Engineer,

Central Zone, Mandi. Re-engagement has been carried out as per the Awards passed by this Court.

The facts that more than 600 retrenched workmen have already been re-engaged and paid the

compensation amounting to Rs.50,000/- each have not been agitated. The compensation paid to the

petitioner was accepted by her without any protest. The petition is meritless.

In these circumstances, the respondent prays that the petition in hand be dismissed with

costs.

4. No rejoinder has been preferred by the petitioner.

5. Per order dated 14.6.2012, following issues were struck:–

1. Whether the termination of the services of the petitioner w.e.f. 08.7.2005 by the

respondent is illegal and unjustified?

..OPP.

2. Whether the reference is not maintainable in the present form?

..OPR.

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3. Whether the reference/petition suffers from the vice of delay and laches as

alleged. If so, its effect?

..OPR.

4. Whether the petitioner has not come to the Court with clean hands as alleged. If

so, its effect?

..OPR.

5. Whether the petitioner is estopped from filing the claim petition by her act and

conduct as alleged?

..OPR.

6. Relief.

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

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

Issue No.1

: Yes

Issue No.2

: Not pressed

Issue No.3

: No

Issue No.4

: Not pressed.

Issue No.5

: Not pressed.

Relief.

: Claim petition allowed in part

vide operative portion of the Award.

REASONS FOR FINDINGS

Issue No.1

8. The petitioner Smt. Beena Devi stepped into the witness box 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. She also placed on the record the mandays chart Ex.

PW1/B in respect of the workman Shri Shashi Kant, who is/was junior to her (PW1) and retained in

service by the respondent.

In the cross-examination, she 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 1087 other workers were removed from service alongwith her. She denied that no

person junior to her has been retained in service by the respondent and her services have been

dispensed with in a rightful manner.

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

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

In his 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 the termination of her services. He

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

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

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

beldar in the year 2008. Self stated, she was re-employed on compassionate grounds as her husband

Shri Hans Raj died in harness. He cannot say that Shri Hans Raj (husband of Smt. Mamta Devi)

expired in the year 1999. He denied that Smt. Mamta Devi was junior to the petitioner. Before re-

engaging her services as a daily wager no opportunity of re-employment was afforded to the

petitioner. He refuted that at the time of the termination of the services of the petitioner, the work

and funds were available.

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10. 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, the Specified Authority gave the

permission to retrench a number of workmen. 11. Ex. RW1/B is the seniority list of daily waged

beldars in respect of the office of the respondent who have completed eight years of service up-to

31.3.2008. 12. Ex. RW1/D is the copy of the termination notice dated 04.7.2005 served upon the

petitioner by the respondent. It unfolds that the services of the petitioner were ordered to be

disengaged w.e.f. 08.7.2005.

13. It is the admitted case of the parties that the services of the petitioner were engaged as

a daily wager on the muster roll w.e.f. December, 1998 and she worked as such continuously up-to

07.7.2005. Admittedly, the services of the petitioner were terminated by the respondent w.e.f.

08.7.2005 by taking recourse to the provisions of Section 25-N of the Act, after issuing the notice

dated 04.7.2005, the copy of which is Ex. RW1/D. The termination notice Ex. RW1/D was issued

by the respondent pursuant to the order dated 17.6.2005 (Ex. RW1/A) passed by the Specified

Authority-cum-Chief Engineer, HPPWD, Central Zone, Mandi. This order has already been held to

be bad in the eyes of law by this Court and the Hon’ble High Court of Himachal Pradesh.

14. The respondent in his reply has admitted that the persons junior to the petitioner are

serving under him. The said fact also finds support from the seniority list/year-wise mandays chart

Ex. PW1/B pertaining to the workman namely Shri Shashi Kant s/o Shri Bihari Lal. Browsing of

Ex.PW1/B reveals that services of Shri Shashi Kant were initially engaged by the respondent in the

year 2000 i.e. after the appointment of the petitioner. Shri Shashi Kant is junior to the petitioner and

his services were not terminated by the respondent alongwith the petitioner on 08.7.2005. This

shows that the respondent failed to abide by the principle of ‘last come first go’. His action is thus

violative of Section 25-G of the Act.

15. Not only this, the seniority list Ex. RW1/B reveals that Smt. Mamta Devi (serial

No.648) was initially engaged by the respondent in the year 2000. She is/was junior to the

petitioner, who was appointed in the year 1998. Her services were also dispensed with after issuing

the notice Ex. RW1/C alongwith the petitioner w.e.f. 08.7.2005. Smt. Mamta Devi was re-engaged

as a daily wager in the year 2008. At the time of re-engaging her services, an opportunity of

reemployment was not afforded to the petitioner. Therefore, it can be safely said that the

respondent has also flouted the provisions of Section 25-H of the Act. The termination of the

services of the petitioner by the respondent is illegal and unjustified.

16. Admittedly, more than 1000 workmen were removed from service by the respondent.

Majority of them raised the industrial dispute. The claim petitions preferred by them have been

allowed by this Court. The Awards pronounced by this Court have been affirmed by the Hon’ble

High Court of Himachal Pradesh. While ordering the reinstatement of the workmen, the Hon’ble

High Court has also directed the respondent to pay a lump sum amount of Rs.50,000/- to each and

every workman in lieu of the back wages and compensation etc. In order to avoid discrimination

amongst the workmen, the petitioner is also entitled to these reliefs.

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

ISSUES No. 2, 4 and 5

18. Not pressed.

ISSUE NO. 3

19. 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:

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“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”.

20. 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.

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

RELIEF (ISSUE NO.6)

22. As a sequel to my findings on the various issues, the present claim petition 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.

23. The reference is answered in the aforesaid terms.

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

official gazette.

25. File after due completion be consigned to the Record Room.

Announced in the open Court today this 8th day of October, 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.

: 623/2008

Date of Institution : 29.10.2008

Date of Decision : 12.10.2012

Shri Bhim Dev s/o Shri Barestu Ram, r/o VPO Tihari (Katoula), Tehsil Sadar, Distt. Mandi,

H.P.

..Petitioner.

Versus

The Executive Engineer, HPSEB, Division, Mandi, Distt. Mandi, H.P.

..Respondent.

6131

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

For the Petitioner

: Sh. K.S. Guleria, Adv.

For the Respondent : Sh. Abhishek Lakhanpal, Adv.

AWARD

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

adjudication:

“Whether termination of services of Sh. Bhim Dev s/o Shri Barestu Ram, by the The

Executive Engineer, HPSEB Division Mandi, Distt. Mandi, H.P. w.e.f. 01.9.2000

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

justified? If not, what amount of back wages, seniority, past service benefits and

compensation the above worker is entitled to from the above employer?”

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

services were engaged as a daily waged beldar on muster roll basis by the respondent in the month

of August, 1998. He worked in Mangwain Section, Sub Division No.1, Mandi. He served the

respondent/Board up-to 31.8.2000. During the period of his employment, the respondent used to

give him the fictional breaks with a malafide intention so that he does not attain the status and

privileges of a permanent workman. On 1st September, 2000, his services were terminated by the

respondent by a verbal order. Neither any show cause notice was served upon him nor an inquiry

was conducted against him. The termination order has been passed by the respondent arbitrarily

and against the principles of natural justice so as to favour the junior workmen namely Smt. Uma

Devi and others. No casual card was issued to him (petitioner) by the respondent. Even no seniority

list of the workmen was supplied to him by the respondent. The latter has failed to adhere to the

principle of ‘last come first go’. He has been victimized. From the date of his disengagement, he is

not gainfully employed. The act and conduct of the respondent is illegal and unauthorized. It is also

violative of the various provisions of the Industrial Disputes Act, 1947 (‘the Act’ for short).

As such, he (petitioner) prays that the termination order dated 01.9.2000 be upset. The

respondent be directed to reinstate him in service with all consequential benefits, including the

seniority, continuity and payment of back wages etc.

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

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

effect that the claim petition is not maintainable in the present form. The petitioner has no locus

standi to sue. The petition is time barred. The petitioner is estopped from filing the petition by his

act and conduct. He has no cause of action.

On merits, it has not been specifically denied that the services of the petitioner were

engaged as a daily waged beldar on the muster roll w.e.f. August, 1998. However, it has been

disputed that the services of the petitioner were terminated on 01.9.2000 or artificial breaks were

given to him during the course of his employment. Actually, the petitioner was in the habit of

remaining absent from work. He left the job voluntarily. Neither the petitioner has been victimized

nor any person junior to him has been retained in service. No provision of the Act has been flouted.

The petitioner is not entitled to any relief.

In these circumstances, the respondent prays that the petition in hand be dismissed.

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

claim and refuted the objections put forth by the respondent. It has been pleaded that he never left

the job as alleged. Even he never absented from duty.

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5. Per order dated 12.08.2010, following issues were struck by my ld. Predecessor:

1. Whether the termination of the petitioner w.e.f. 01.9.2000 is violative of the

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

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

..OPP.

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

..OPR.

3. Relief.

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

7. 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

Relief.

: Claim petition allowed in part vide

operative portion of the Award.

REASONS FOR FINDINGS

Issue No.1

8. The petitioner Shri Bhim Dev 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.

In the cross-examination, he denied that he left the service willingly. He also denied that no

person junior to him is serving the respondent and he has given a phoney statement.

9. Conversely, Shri Suresh Kumar Sen, Assistant Engineer, Electrical Sub Division No.II,

Mandi 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 submitted by the respondent.

In the cross-examination, he admitted that the petitioner had joined the service as a daily

wager in the month of August, 1998 and worked continuously up-to August, 2000. He also

admitted that before the termination of the services of the petitioner no notice and retrenchment

compensation were given to him. Self stated, the petitioner left the job of his own. No notice was

served upon the petitioner regarding his absence from duty. Even no inquiry was conducted against

him. He admitted that after September, 2000 (i.e. after the disengagement of the petitioner) new

workmen namely Smt. Uma Devi etc. have been appointed by them. Volunteered, Smt. Uma Devi

was employed in the year 1998-99. He cannot say as to whether any new/fresh hands were engaged

or not after the termination of the petitioner. He admitted that seniority list of the workmen has not

been produced by them. He denied that the petitioner approached them regularly for providing the

work, but in vain.

10. Ex. PW1/B is the copy of the legal notice dated 7th September, 2002 served upon the

respondent by the petitioner.

11. No reference has been received from the appropriate Government regarding providing

the fictional breaks to the petitioner by the respondent. Therefore, the said controversy, if any,

between the parties cannot be looked into by this Court being beyond the terms of the reference.

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12. It is the admitted case of the parties that the services of the petitioner were engaged as

a daily waged beldar in the month of August, 1998. Shri Suresh Kumar Sen (RW1) in his cross-

examination admitted that the petitioner served the respondent/Board continuously up-to the month

of August, 2000. The version of the petitioner is that on 01.9.2000, his services were dispensed

with by the respondent by a verbal order wrongly and illegally. While denying the said fact, the

respondent has pleaded that the petitioner left the job of his own accord and free volition.

13. It is well known that the abandonment has to be proved like any other fact by the

respondent/employer. Simply because a workman fails to report for duty it cannot be presumed that

he has left/abandoned the job. It is there in the statement of RW1 that no notice was served upon

the petitioner calling upon him to resume his duties after he allegedly left the service. Absence

from duty is serious misconduct. Admittedly no disciplinary proceedings were initiated against the

petitioner for his alleged willful absence from duty. The plea of abandonment put forth by the

respondent is not established.

14. As already mentioned, Shri Suresh Kumar Sen (RW1) admitted in his cross-

examination that the petitioner served as a daily wager regularly from August, 1998 to August,

2000. This indicates that the petitioner had worked for a period of more than 240 days in a block of

12 calendar months preceding the date of his termination as envisaged under Section 25-B of the

Act.

15. Section 25-F of the Act postulates as under:–

“25-F. Conditions precedent to retrenchment of workmen.- No workman employed

in any industry who has been in continuous service for not less than one year under an

employer shall be retrenched by that employer until-

(a) the workman has been given one month’s notice in writing indicating the reasons

for retrenchment and the period of notice has expired, or the workman has been

paid in lieu of such notice, wages for the period of the notice:

(b) the workman has been paid, at the time of retrenchment compensation which shall

be equivalent to fifteen days’ average pay for every completed year of continuous

service or any part thereof in excess of six months; and

authority as may be specified by the appropriate Government by notification in

the Official Gazette.”

16. There is not even an iota of evidence on the record to show that the mandatory

provisions of the above noted Section were complied with by the respondent.

17. Shri Suresh Kumar Sen (RW1) stated during the cross-examination that one Smt. Uma

Devi was appointed in the year 1998/1999. At the time of arguments, the ld. counsel for the

respondent fairly conceded at bar that Smt. Uma Devi is/was junior to the petitioner and her

services were not disengaged. This shows that the respondent has failed to adhere to the principle

of ‘first come last go’. His action contravenes the provisions of Section 25-G of the Act. The

termination of the services of the petitioner by the respondent is wrong and illegal.

18. There is no cogent and convincing evidence on the record to show that after the

termination of the services of the petitioner by the respondent, new/fresh hands have been engaged.

The provisions of Section 25-H of the Act are not attracted in this case.

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19. While testifying in the Court as PW1, the petitioner has given his age as 32 years. It is

well known that a young man like the petitioner will not sit at home during the period he is/was out

of the service. The petitioner has failed to discharge the initial onus that during the period of his

forced idleness, he was not gainfully employed. For this reason, he is not entitled to the back

wages.

20. This issue is answered accordingly.

ISSUE No.2

21. Not pressed.

RELIEF (ISSUE NO.3)

22. As a sequel to my findings on issue No.1 above, the instant claim petition 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. He shall be entitled to the seniority

and continuity in service from the date of his illegal termination i.e. 01.9.2000 except back wages.

Parties to bear their own costs.

23. The reference is answered in the aforesaid terms.

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

official gazette.

25. File after due completion be consigned to the Record Room.

Announced in the open Court today this 12th day of October, 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. : 26/2012

Date of Institution : 02.01.2012

Date of Decision : 08.10.2012

Shri Chaudhary Ram s/o Shri Noopa Ram, r/o Village Naraingarh, P.O. Tanehar, 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.

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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. Chaudhary Ram s/o Sh. Noopa Ram, Village

Naraingarh, P.O. Tanehar, Tehsil Sarkaghat, Distt. Mandi, H.P. by the Executive

Engineer, HPPWD Division, Dharampur, Tehsil Sarkaghat, Distt. Mandi, w.e.f.

08.7.2005, without following the provisions of the Industrial Disputes Act, 1947 is

legal and justified? If not, to what amount of back wages, seniority, past service

benefits and compensation the above Ex-Worker is entitled to from the above

employer?”

2. 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 01.01.1999. 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

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 coworkers. 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.

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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”.

3. 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. He (petitioner) is estopped from filing the petition by his act and conduct.

On merits, it has been owned that the services of the petitioner were engaged as a daily

rated beldar on 01.01.1999 and he worked as such up-to 07.7.2005. He 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.

4. No rejoinder has been preferred by the petitioner.

5. Per order dated 13.6.2012, following issues were struck:–

1. Whether the termination of the services of the petitioner w.e.f. 08.7.2005 by the

respondent is illegal and unjustified?

..OPP.

2. Whether the reference is not maintainable in the present form?

..OPR.

3. Whether the reference/petition suffers from the vice of delay and laches as

alleged. If so, its effect?

..OPR.

4. Whether the petitioner has not come to the Court with clean hands as alleged. If

so, its effect?

..OPR.

5. Whether the petitioner is estopped from filing the claim petition by his act and

conduct as alleged?

..OPR.

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6. Relief.

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

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

Issue No.1

: Yes

Issue No.2

: Not pressed

Issue No.3

: No

Issue No.4

: Not pressed.

Issue No.5

: Not pressed.

Relief.

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

REASONS FOR FINDINGS

Issue No.1

8. The petitioner Shri Chaudhary Ram stepped into the dock 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.

In the cross-examination, he admitted that he worked as a daily waged beldar up-to July,

2005. He also admitted that Dharampur Division of HPPWD was created in the year 1998. He

denied that with the creation of new Division, the labour became surplus. He admitted that his

services alongwith 1087 other workers were dispensed with by the respondent. He denied that no

person junior to him has been retained in service by the respondent. He also denied that the claim

put forth by him is false.

9. 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 his 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. 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.

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

the respondent.

11. 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.

12. 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.

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13. 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.

14. Ex. RW1/D is the copy of the notice dated 04.7.2005 issued by the Executive

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

intimating him that his services shall stand terminated w.e.f. 08.7.2005.

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

engaged as a daily rated beldar on 01.01.1999 and he 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.

16. 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.

17. 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.

18. 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).

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

ISSUES NO. 2, 4 and 5

20. Not pressed.

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”.

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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 him 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 he is/was out of the service. The petitioner has failed to discharge the initial onus

that during the period of his forced idleness, he was not gainfully employed.

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

RELIEF (ISSUE NO. 6)

25. 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. He shall be entitled to the

seniority and continuity in service from the date of his 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.

26. The reference is answered in the aforesaid terms.

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

official gazette.

28. File after due completion be consigned to the Record Room.

Announced in the open Court today this 08th day of October, 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. : 350/2008

Date of Institution : 13.6.2008

Date of Decision : 12.10.2012

Shri Chura Mani Thakur s/o Shri Chamar Thakur, r/o Village Dewli, P.O. Kotmoras, Tehsil

Sadar, District Mandi, H.P.

..Petitioner.

Versus

1. Chairman-cum-Managing Director, A.D. Hydro Power Limited, V.P.O. Prini, District

Kullu, H.P.

2. Incharge, A.D. Hydro Power Limited, V.P.O. Prini (Manali), District Kullu, H.P.

. .Respondents.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondents : Sh. Anuj Sharma, Adv.

AWARD

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

adjudication:

“Whether the termination of services of Shri Chura Mani Thakur s/o Shri Chamar

Thakur workman by the (1) Chairmancum-Managing Director, A.D. Hydro Power

Limited, V.P.O. Prini, District Kullu, H.P. (2) Incharge, A.D. Hydro Power Limited,

V.P.O. Prini (Manali), District Kullu, H.P. w.e.f. 21.12.2005 without giving charge

sheet, inquiry and opportunity to explain his conduct without complying the provisions

of the Industrial Disputes Act, 1947 is proper and justified? If not, what amount of

back wages, seniority, past service benefits and compensation the above aggrieved

workman is entitled to?”

2. The case of the petitioner (as set out in the statement of claim/demand) is that he was

appointed as a Tractor Driver by the respondents per letter dated September 24, 2005 on payment

of the consolidated monthly salary of Rs.3880/-. He continuously worked as such up-to 20.12.2005.

His services were terminated w.e.f. 21st December, 2005 by Shri Rakesh Sharma, Personnel

Officer of the respondents, vide letter No.8351 of even date. Before the termination of his services,

neither any show cause notice was served upon him (petitioner) nor he was charge-sheeted. Even

no inquiry was conducted against him. One month pay in lieu of the notice period and retrenchment

compensation were also not paid to him. He was appointed by the H.O.D. of P&A Department. His

services have been dispensed with by a non appointing authority. Shri Rakesh Sharma, the

Personnel Officer of the company was not empowered to remove him from service. One Sh. Jeeva

Nand has been retained in service by the respondents in violation of the principles of natural

justice. The State Government has framed a policy to appoint 70% persons from Himachal Pradesh

in any industry established in the State. Being a bonafide resident of the State of Himachal Pradesh

and having the license to drive a light motor vehicle with more than 10 years of experience, he

(petitioner) is entitled to the employment under the respondents. The respondents have their own

Standing Orders. His services have been disengaged illegally and arbitrarily as well as in violation

of the terms and conditions of the appointment as contained in the appointment letter. The

respondents have also flouted various provisions of the Industrial Disputes Act, 1947 (‘the Act’ for

short). From the date of his illegal termination, he is unemployed.

As such, he (petitioner) prays that the termination order dated 21.12.2005 be set aside. The

respondents be directed to reinstate him in service with all consequential benefits including the

seniority, continuity in service and payment of the back wages etc. Further, it has been prayed that

the respondents be directed to pay him Rs.5000/- as litigation cost.

3. On notice, the respondents appeared. They filed joint reply controverting the

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

effect that the Chairman-cum-Managing Director (respondent No.1) is not looking after day to day

affairs of A.D. Hydro Power Limited. As such, the reference against him (respondent No.1) is not

maintainable and is bad in the eyes of law. The demand notice was issued by the petitioner only on

3rd March, 2006. This reflects that he was satisfied with respect to his discharge from service by

the management. The demand notice was issued by the petitioner at a belated stage and the same is

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after thought. The petition is not maintainable in the present form. The petitioner was appointed as

a driver on fixed term contractual basis for the period 24.9.2005 to 23.9.2006. His services were

terminated in accordance with the stipulation contained in the appointment letter vide letter dated

21st December, 2005. The contractual/fixed term period for which the services of the petitioner

were engaged has already come to an end on 23.9.2006. For this reason also the reference/claim

petition does not lie. The petitioner was appointed as a driver for one year per letter dated

24.9.2005. From the very beginning he was negligent and careless in performing his duties. On 20^th

October, 2005, at 4 P.M., an accident took place near 10000 RD on Allain site of the project due to

the rash and negligent driving of the petitioner. The tractor of the company was badly damaged.

The company had to incur huge expenditure for getting the damaged tractor repaired. The rash and

negligent driving of the petitioner was not only harmful to the company, but to the public at large

as well. After the accident, the management constituted three members committee to conduct an

inquiry. The inquiry committee submitted its report dated 17.11.2005 relating to the accident. The

inquiry committee held that the mishap resulted due to the rash and negligent driving of the

petitioner. The report of the inquiry committee was forwarded to the project incharge. The latter

decided to terminate the services of the petitioner by giving him one month’s notice. Accordingly,

the petitioner was called and informed verbally by Shri Shiv Kumar the then HOD (P&A) that his

(petitioner’s) services will be terminated after one month in terms of clause 4 of the appointment

letter. The services of the petitioner were disengaged vide letter dated 21.12.2005 issued by the

company in accordance with Section 2 (oo) (bb) of the Act. The work of the petitioner was not

satisfactory.

On merits, it has been owned that the services of the petitioner were engaged as a driver on

fixed term contractual basis per letter dated 24.9.2005 on payment of the monthly basic salary of

Rs.1950/- plus other perks. The term of contractual appointment of the petitioner was from

24.9.2005 to 23.9.2006. The services of the petitioner have been terminated as an accident took

place due to his rash and negligent driving causing loss to the company. Shri Rajesh Sharma was

duly authorized and competent to terminate the services of the petitioner. It stands admitted that

Shri Jeeva Nand is still working as a driver with the company. However, it has been disputed that

the terms and conditions of the appointment of Shri Jeeva Nand were the same as that of the

petitioner. The services of the petitioner have been rightly disengaged. Industrial Standing Orders

are not applicable to them (respondents). The petitioner is gainfully employed.

In these circumstances, the respondents pray that the petition in hand be dismissed with

costs.

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

claim and refuted the objections put forth by the respondents. It has been owned that he (petitioner)

was appointed as a driver on fixed term contractual basis from 24.9.2005 to 23.9.2006. No accident

occurred due to his fault. He was not called by Shri Shiv Kumar HOD of P&A on 17th November,

2005 and verbally informed that his services will be terminated after one month. The fact that Shri

Rakesh Sharma (Personnel Officer) was authorized to terminate the services of the petitioner has

not been specifically disputed.

5. Per order dated 24.03.2009, following issues were struck by one of my ld.

Predecessors:

1. Whether the termination of services of the petitioner by the respondent is

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

. .OPP.

2. Whether the claim petition is not maintainable?

. .OPR.

3. Relief.

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

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

Issue No.1 : No

Issue No.2 : Yes

Relief. : Claim petition dismissed vide operative portion of the Award.

REASONS FOR FINDINGS

Issues No. 1 And 2

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

for discussion and disposal.

9. The petitioner Shri Chura Mani 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.

In the cross-examination, he stated that he used to ply a tractor. He denied that on

20.10.2005 in the evening an accident took place due to his rash and negligent driving causing

damage to the tractor. He admitted that a report relating to the accident was made by Shri Ishwar

Dass, Foreman. The appointment letter was issued in his name by Shri Shiv Kumar, HOD (P&A).

He denied that after the accident Shri Shiv Kumar informed him that his services will be

disengaged after one month. He admitted that after one month of the accident termination letter was

served upon him by the respondents/company. He cannot say as to whether Shri Jiva Nand is

serving as a tractor driver in the company or not? He admitted that the work at Allain site has

already been completed and the power generation has started. He denied that the company suffered

the loss due to his fault because of which his contractual engagement was terminated. Further, he

denied that he has instituted a phoney petition.

10. Conversely, Shri Ramesh Kumar Khaitan, the power of attorney holder of the

respondents, 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 submitted by the respondents. He also

placed on the record Ex. RW1/B i.e. the copy of the power of attorney executed in his name by the

Chairman and Director of the respondent company.

In the cross-examination, he admitted that Shri Rajesh Sharma, who signed the termination

letter, was not the appointing authority of the petitioner. No show cause notice was served upon the

petitioner regarding the accident. Even no inquiry was conducted against him.

11. Ex. PW1/B is the copy of the appointment letter dated September 24,2005 issued in

favour of the petitioner by the respondents. This letter was signed by Shri Shiv Kumar, HOD

(P&A) on behalf of the respondents.

12. Ex. PW1/C is the wage fixation sheet pertaining to the petitioner.

13. Ex. PW1/D is the copy of the letter dated 21.12.2005 written by Shri Rakesh Sharma,

Personnel Officer of the respondents, to the petitioner. As per this letter, the petitioner was removed

from service w.e.f. the close of the day on 21^st December, 2005 as his services were not found

satisfactory.

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14. Ex. PW1/E is the copy of the demand notice served upon the respondents by the

petitioner.

15. Ex. PW1/F is the copy of the reply submitted by the respondents before the

Conciliation-cum-Labour Officer, Mandi during the conciliation proceedings.

16. Ex. RW1/C is the copy of the joint damage report with respect to the damage caused to

the tractor trolley in an accident dated 20.10.2005.

17. Ex. RW1/D is the report of the inquiry committee appointed by the respondents. It

unfolds that it was recommended by the committee that the petitioner should be relieved of his

duties after giving one month wages in lieu of the notice period or one month’s notice. The

petitioner was called on 17.11.2005 and advised not to perform the duty. One month’s wages in

lieu of the notice period were also ordered to be paid to him.

18. It is the admitted case of the parties that the services of the petitioner were engaged

purely on contractual basis for a fixed term i.e. 24.9.2005 to 23.9.2006 per appointment letter dated

24.9.2005, the copy of which is Ex. PW1/B. In this letter, it has been specifically mentioned that

the petitioner will automatically get relieved from duty on completion of the time bound contractual

assignment. Condition No.4 of Ex. PW1/B postulates that the services of the petitioner were liable

to be terminated without assigning any reason on one month’s notice on either side or basic pay in

lieu thereof.

19. It is not the case of the petitioner that one month basic pay in lieu of the notice period

has not been given to him by the respondents at the time of the termination of his services.

20. It is an admitted fact that the services of the petitioner were terminated w.e.f.

21.12.2005 per letter Ex. PW1/D. The version of the petitioner is that Shri Rakesh Sharma

(Personnel Officer) who signed the termination letter Ex. PW1/D, was not his appointing authority.

The appointing authority was Shri Shiv Kumar, HOD (P&A). His (petitioner’s) services have been

dispensed with by a person who was not the appointing authority. For this reason, the termination

of his services is bad in view of the observations made in Chhatrapal Singh Thakur vs. Assistant

Commissioner of Coalmines Provident Fund and two others, 2001 LLR 687, (MP).

21. On the other hand, the respondents have maintained that the petitioner was duly called

by the appointing authority namely Shri Shiv Kumar, HOD (P&A) and advised not to perform his

duties. Shri Rakesh Sharma was simply asked to take necessary further action as per the

recommendations of the committee. This assertion of the respondents appears to be true in view of

the contents of the letter/inquiry report Ex. RW1/D. Otherwise also, if the services of the petitioner

were wrongly and illegally terminated by a person who was not the appointing authority then why

the petitioner accepted the payment of one month’s wages in lieu of the notice period and that too

without any protest? The reasons to that effect being obscure go to show that the petitioner is not

telling the truth.

22. As already mentioned the respondents have maintained that the services of the

petitioner were terminated before the expiry of the contractual period of appointment i.e. 24.9.2005

to 23.9.2006 since an accident took place due to his rash and negligent driving causing substantial

loss to the company. Condition No.4 of the appointment letter Ex. PW1/B clearly lays down that

the services of the petitioner can be terminated even without assigning any reason after giving one

month’s notice or basic pay in lieu thereof. Not only this, on the completion of the term of the

contractual appointment, the petitioner was to get automatically relieved of his duties. Taking into

account the catena of law laid down in (i) Mukhiya Karyapalak Adhikari, U.P. Khadi Tatha

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Gramodyog Board Karmit Anubhag, Lucknow & Anr. Vs. Santosh Kumar, 2011 LLR 1235 (SC),

(ii) M.D.Karnataka Handloom Dev. Corpn. Ltd. versus Sri Mahadeva Laxman Raval, 2007 STPL

(LE) 37744 SC, (iii)The Saraswat Co-Op. Bank Limited vs. The Saraswat Co-Op. Bank Employees

Union & Ors., 2011 LLR 1059 (Bombay) and (iv) Kishore Chandra Vs. D.M. Orissa State Cashew

Devel. C. Ltd., 2005 STPL (LE) 35114 SC, by no stretch of imagination, it can be said that the

petitioner has a legal or vested right to continue in service or his services have been illegally

retrenched by the respondents.

23. Otherwise too, the period of contractual appointment of the petitioner came to an end

on 23.9.2006. Due to this fact, the respondents cannot be directed to reinstate him in service. The

petitioner (PW1) in his cross-examination admitted that the project work at Allain site has already

been completed and the power generation has begun. Since the work has already been completed,

the respondents cannot be directed to re-engage the petitioner. It is well known that the Award

passed by this Court is to be executed as a decree of the Civil Court and no Court is required to

pass a decree which is un-executable.

24. Such being the situation, I have no hesitation to conclude that the services of the

petitioner have been rightly terminated by the respondents. The claim petition is not maintainable.

The petitioner is not entitled to any relief. It appears to me that the avarice of the petitioner to grab

the job and money has forced him to prefer a totally false and baseless claim.

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

RELIEF (ISSUE NO. 3)

26. As a sequel to my findings on issues No.1 and 2 above, the instant claim petition being

meritless, not maintainable and malafide fails. It is, therefore, dismissed with costs quantified as

Rs.3,000/-

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 12th day of October, 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. : 197/2012

Date of Inst itution : 03.03.2012

Date of Decision : 08.10.2012

Shri Dharam Pal s/o Shri Bachitar Singh, r/o VPO Brang, Tehsil Sarkaghat, Distt. Mandi,

H.P.

…Petitioner.

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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. N.L. Kaundal, AR

: Sh. Vijay Kaundal, 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 Shri Dharam Pal s/o Sh. Bachitar Singh, VPO

Brang, Tehsil Sarkaghat, Distt. Mandi, H.P. by the Executive Engineer, HPPWD

Division, Dharampur, Tehsil Sarkaghat, Distt. Mandi, w.e.f. 08.7.2005, without

following the provisions of the Industrial Disputes Act, 1947 is legal and justified? If

not, what amount of back wages, seniority, past service benefits and compensation the

above Ex-Worker is entitled to from the above employer?”

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

services were engaged as a daily wager on the muster rolls by the respondent w.e.f. January, 1998.

He uninterruptedly worked as such up-to 07.7.2005. On 08.7.2005, his services were disengaged by

the respondent by issuing three months notice and paying the retrenchment compensation as

envisaged under Section 25-N of the Industrial Disputes Act, 1947 (‘the Act’ for short). He had

completed 240 days of work in each and every calendar year of his employment as well as in a

block of 12 calendar months preceding the date of his illegal retrenchment i.e. 08.7.2005. Before

the termination of his services, the respondent has not provided any seniority list of the daily

wagers working under him (respondent). 35 persons junior to him (petitioner) namely S/Sh.

Subhash Chand, Shashi Kant and Bidhi Chand etc. have been retained in service by the respondent.

Shri Dharampal s/o Sh. Sarwan Ram was appointed as daily waged beldar by the respondent in the

month of November, 1998, whereas, the services of Sh. Shashi Kant were engaged by the

respondent in the year 2000. The persons junior to him (petitioner) were not retrenched from

service alongwith him. The respondent has not followed the principle of ‘last come first go’. Not

only this, one Smt. Mamta Devi w/o late Shri Hans Raj was appointed by the respondent in the year

2000. She is/was junior to him (petitioner). Her services were also dispensed with by the

respondent w.e.f. 08.7.2005 alongwith him. Smt. Mamta Devi has been re-engaged by the

respondent in the year 2007. At the time of her re-engagement, an opportunity of re-employment

was not given to him (petitioner). In the month of September, 2009, 43 retrenched workmen have

been re-engaged by the respondent. At the time of their re-engagement, the principle of ‘last come

first go’ has not been adhered to. Junior retrenched workmen have been re-engaged without

providing an opportunity of re-employment to the seniors. The retrenchment orders dated

02.7.2005 and 04.7.2005 passed by the respondent have already been set aside by this Court and

confirmed by the Hon’ble High Court of Himachal Pradesh. The respondent has re-employed more

than 600 retrenched workmen. They have also been paid the compensation amounting to

Rs.50,000/- each. He (petitioner) is unemployed from the date of his disengagement. The act and

conduct of the respondent is illegal and unjustified. It also contravenes the provisions of Sections

25-G and 25-H of the Act.

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

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

“1. That the Hon’ble Court kindly be set aside the illegal retrenchment order passed by the

respondent dated 02.07.2005/04.07.2005 and directed to respondent to reinstate the

services of applicant with full back wages, seniority, in continuity of service with all

consequential service benefits.

2. The Hon’ble Court further directed to respondent to regularize the services of applicant

on the basis of policy framed by the State Government and on the basis of his seniority

fall in the cadre post.

3. The Hon’ble Court kindly be directed to respondent to pay the 9% interest on back

wages and pay the Rs.5000/- as litigation cost as well as counsel fee. And if any other

relief deemed fit may kindly be granted in the favour of applicant in the interest of

justice”.

3. 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 claim petition/reference is not maintainable since 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. He has suppressed the material facts

from the Court. The petitioner is estopped from filing the claim petition by his act and conduct.

On merits, it has been owned that the services of the petitioner were engaged as a daily

wager on the muster roll w.e.f. January, 1998 and he worked continuously as such up-to 07.7.2005.

It stands admitted that the services of the petitioner were terminated w.e.f. 08.7.2005 by taking

recourse to the provisions of Section 25-N of the Act. The retrenchment of the daily wagers has

been ordered as per the decision of the Specified Authority-cum-Chief Engineer, Central Zone,

Mandi. Three months notice and retrenchment compensation were given to the petitioner. He was

also afforded an opportunity of being heard before the retrenchment. The fact that some junior

daily wagers are working in Dharampur Division of the HPPWD has been admitted. The juniors are

working due to the non-availability of the seniority of the workers who were transferred from other

Divisions/Sub Divisions. The retrenchment notices have also been given to the juniors who are

surplus. It stands admitted that the services of Smt. Mamta Devi were retrenched alongwith the

petitioner. She has been re-engaged on compassionate grounds as her husband Shri Hans Raj died

in an accident. In the month of September, 2009, 43 retrenched workmen have been re-employed

after obtaining the legal opinion from the Law Department and sanction from the Chief Engineer,

Central Zone, Mandi. Re-engagement has been carried out as per the Awards passed by this Court.

The facts that more than 600 retrenched workmen have already been re-engaged and paid the

compensation amounting to Rs.50,000/- each have not been agitated. The compensation paid to the

petitioner was accepted by him without any protest. The petition is meritless.

In these circumstances, the respondent prays that the petition in hand be dismissed with

costs.

4. No rejoinder has been preferred by the petitioner.

5. Per order dated 14.6.2012, following issues were struck:—

1. Whether the termination of the services of the petitioner w.e.f. 08.7.2005 by the

respondent is illegal and unjustified?

. .OPP.

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2. Whether the reference is not maintainable in the present form?

. .OPR.

3. Whether the reference/petition suffers from the vice of delay and laches as

alleged. If so, its effect?

. .OPR.

4. Whether the petitioner has not come to the Court with clean hands as alleged. If

so, its effect?

. .OPR.

5. Whether the petitioner is estopped from filing the claim petition by his act and

conduct as alleged?

. .OPR.

6. Relief.

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

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

Issue No.1 : Yes

Issue No.2 : Not pressed

Issue No.3 : No

Issue No.4 : Not pressed.

Issue No.5 : Not pressed.

Relief.

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

REASONS FOR FINDINGS

ISSUE NO. 1

8. The petitioner Shri Dharam Pal 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 placed on the record the mandays chart Ex.

PW1/B in respect of the workman Shri Shashi Kant, who is/was junior to him (PW1) and retained

in service by the respondent.

In the cross-examination, he admitted that Dharampur Division of HPPWD was created in

the year 1998. He denied that with the creation of new Division, the labour became surplus. He

admitted that 1087 other workers were removed from service alongwith him. He denied that no

person junior to him has been retained in service by the respondent and his services have been

dispensed with in a rightful manner.

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

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

In his 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 the termination of his services. He

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

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

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

beldar in the year 2008. Self stated, she was re-employed on compassionate grounds as her husband

Shri Hans Raj died in harness. He cannot say that Shri Hans Raj (husband of Smt. Mamta Devi)

expired in the year 1999. He denied that Smt. Mamta Devi was junior to the petitioner. Before re-

engaging her services as a daily wager no opportunity of re-employment was afforded to the

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petitioner. He refuted that at the time of the termination of the services of the petitioner, the work

and funds were available.

10. 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, the Specified Authority gave the

permission to retrench a number of workmen.

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

respondent who have completed eight years of service up-to 31.3.2008.

12. Ex. RW1/D is the copy of the termination notice dated 04.7.2005 served upon the

petitioner by the respondent. It unfolds that the services of the petitioner were ordered to be

disengaged w.e.f. 08.7.2005.

13. It is the admitted case of the parties that the services of the petitioner were engaged as

a daily wager on the muster roll w.e.f. January, 1998 and he worked as such continuously up-to