jkti=] fgekpy izns'k

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

f”keyk] 'kfuokj 2 Qjojh] 2013@13 ek?k] 1934

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 28th January, 2013

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

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

Civil Judge (Junior Division)-cum-JMIC, Chamba as Drawing and Disbursing Officer in respect of

the Court of Presiding Officer, Fast Track Court, Chamba and also the Controlling Officer for the

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

00-105-03 (Soon Plan)” w.e.f. 29.1.2013 to 3.2.2013.

By order,

Sd/-

Registrar General.

226&jkti=@2013&2&2&2013 ¼6615½

6616

jkti=] fgekpy izns'k] 2 Qjojh] 2013@13 ek?k] 1934

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 28th January, 2013

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

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

Civil Judge (Senior Division)-cum-JMIC(II), Shimla as Drawing and Disbursing Officer in respect

of the Courts of District and Sessions Judge, Addl. District and Sessions Judge and P.O. Fast Track

Court, Shimla and also the Controlling Officer for the purpose of T.A. etc. in respect of

establishment attached to the aforesaid Courts under head “2014 Administration of Justice” and

“2014-00-105-03 (Soon Plan)” w.e.f. 4.2.2013 to 17.2.2013.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171 001

NOTIFICATION

Shimla, the 28th January, 2013.

No. HHC/Admn.6 (24)74-VIII.—The High Court of Himachal Pradesh, in exercise of the

powers vested U/S 12(2) of the Code of Criminal Procedure, 1973, has been pleased to appoint

Civil Judge (Senior Division)-cum-JMIC(II), Shimla as Additional Chief Judicial Magistrate for

Shimla Division, authorizing him to look after the urgent work pertaining to the Courts of District

and Sessions Judge/Addl. District and Sessions Judge and Fast Track Court, Shimla w.e.f. 4.2.2013

to 17.2.2013.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA - 171 001

NOTIFICATION

Shimla, the 28th January, 2013

No. HHC/Admn.6 (24)74-VIII.—The High Court of Himachal Pradesh, in exercise of the

powers vested U/S 12(2) of the Code of Criminal Procedure, 1973, has been pleased to appoint

Civil Judge (Junior Division)-cum-JMIC, Chamba as Additional Chief Judicial Magistrate for

Chamba Division, authorizing him to look after the urgent work pertaining to the Courts of District

and Sessions Judge and Fast Track Court, Chamba w.e.f. 29.1.2013 to 3.2.2013.

By order,

Sd/-

Registrar General.

6617

jkti=] fgekpy izns'k] 2 Qjojh] 2013@13 ek?k] 1934

HIGH COURT OF HIMACHAL PRADESH, SHIMLA – 171 001

NOTIFICATION

Shimla, the 28th January, 2013

No. HHC/Admn.6(22)74-X-.—Hon’ble the High Court of Himachal Pradesh, in exercise

of the powers vested in it under proviso to Section 5 of the H.P. Courts Act (Act No. 23 of 1976)

and Section 9(4) of the Code of Criminal Procedure has been pleased to appoint Sh. Rakesh Kumar

Chaudhary, Joint Director, H.P. State Judicial Academy, Shimla as the Additional District and

Sessions Judge for Kinnaur Civil and Sessions Division, with immediate effect.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 28th January, 2013

No. HHC/GAZ/14-316/2010.—Hon’ble the Chief Justice has been pleased to grant ex post

facto sanction of 10 days’ earned leave w.e.f. 31.12.2012 to 9.1.2013 with permission to prefix

Sunday fell on 30.12.2012 in favour of Shri Baldev Singh, District and Sessions Judge, Kullu, H.P.

Certified that Shri Baldev Singh had joined the same post and at the same station from

where he proceeded on leave, after expiry of the above period of leave.

Also certified that Shri Baldev Singh would have continued to hold the same post of District

and Sessions Judge, Kullu, H.P., but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA-171001

NOTIFICATION

Shimla the 28th January, 2013

No. HHC/GAZ/14-159/84-II.—Hon’ble the Chief Justice has been pleased to grant ex-

post facto sanction of 12 days’ commuted leave w.e.f. 7.1.2013 to 18.1.2013 in favour of Shri B.L.

Soni, District and Sessions Judge (Forest), Shimla, H.P.

Certified that Shri B.L. Soni had joined the same post and at the same station from where he

proceeded on leave, after expiry of the above period of leave.

6618

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Also certified that Shri B.L. Soni would have continued to hold the same post of District

and Sessions Judge (Forest), Shimla, H.P., but for his proceeding on leave for the above period.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

NOTIFICATION

Shimla, the 23^rd January, 2013

No. HHC/Admn .3 (339)/92.—12 days earned leave on and w.e.f. 21.1.2013 to 1.2.2013

with permission to prefix Sunday falling on 20.1.2013 is hereby sanctioned in favour of Sh. Ram

lal Verma, Secretary of this Registry.

Certified that Sh. Ram Lal Verma is likely to join the same post and at the same station

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

Certified that Sh. Ram Lal Verma, Secretary would have continued to officiate the same

post of Secretary, but for his proceeding on leave.

By order,

Sd/-

Registrar General.

________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA

NOTIFICATION

Shimla, the 23^rd January, 2013

No. HHC/Admn .3 (189)/83-I.—10 days earned leave on and w.e.f. 07.2.2013 to 16.2.2013

with permission to Suffix Sunday falling on 17.2.2013 is hereby sanctioned in favour of Smt.

Dinesh Chauhan, Assistant Registrar of this Registry.

Certified that Smt. Dinesh Chauhan is likely to join the same post and at the same station

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

Certified that Smt. Dinesh Chauhan, Assistant Registrar would have continued to officiate

the same post of Assistant Registrar, but for her proceeding on leave.

By order,

Sd/-

Registrar General.

6619

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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 24^th January, 2013

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

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

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

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

Sr.

No.

Case No.

Title of the Case

Date of Award

117/2009

Smt./Shri Susheel Kumar V/s Executive Director

Rampur & Others

1-1-2013

87/2001

Samtal Workers Union V/S Samtal Colour Ltd.

2-1-2013

18//2012

Smt. Tripta Devi V/s M.D. M/S G.W.S.Health Case

Barotiwala.

2-1-2013

12/2011

Sh. Amit Kumar V/s I&PH Shimla &Other.

2-1-2013

57/2009

Sh. Virender kumar V/S M/D M/S Pacific

Electronics and Compondant Pvt, Ltd.

2-1-0213

116/2010

Sh.Roop Singh V/S State of H.P. through

Secretary Forest with HQ Shimla & Others.

2-1-2013

73/2010

Sh. Tilak Raj V/s M/S S.S. Engg. Bus Stand Baddi.

4-1-2013

115/2009

Sh. Magru Pragapati V/s Birla textile Mills Baddi.

10-1-2013

16/2006

Sh. Naseeb Chand V/s The manager Componet &

Equipment Ltd.Baddi.

11-1-2013

By order,

Sd/-

Addl.Chief Secretary (Lab. & Emp.).

_______

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 24^th January, 2013

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

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

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

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

Sr.

No.

Case No.

Title of the Case

Date of Award

287/2002

Smt./Shri Dhain Singh V/s Vice President Jayko

India Ltd, Solan.

6-12-2012

285/2002

Sh. Rajesh Kumar V/S -do-

6-12-2012

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77//2009

Sh. Bidhi Chand V/s M/S Eicher Tractor Parwanoo.

15-12-2012

51/2007

Sh. Nagin Chand V/s M/S Gujrat Ambuja cement,

D/Ghat.

6-12-2012

40/2010

Sh. Rajesh Kumar V/S M/S Isdoyed Engg

technoliges Ltd.

5-12-2012

60/2010

Sh. Raj Kumar V/S M/S Anand Aircon Parwanoo.

11-12-2012

54/2011

Sh. Virender Thakur V/s M/S Padmawati Balaji

Kasumpti.

20-12-2012

59/2011

Sh. Mohan Singh V/s M/s Diamond Products Ltd.

Sirmour.

18-12-2012

33/2008

Sh. Brij Lal V/s M.D. Ambuja Cement Ltd.

6-12-2012

10.

33/2011

Sh. Summan Bala V/s M/s Shivalik Agro poly

product & others.

3-12-2012

11.

45/2007

Sh. Virender Kumar Sharma V/s M/S Raja Forging

& Gears Ltd. Sai Road, Baddi.

31-12-2012

By order,

Sd/-

Addl.Chief Secretary ( Lab. & Emp.).

_______

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

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

Ref No. 12 of 2011

Instituted on. 2.5.2011.

Decided on 2.1.2013.

Amit Kumar S/o Shri Mathu Ram R/o Village & P.O Gumma, Tehsil & District Shimla,

HP.

. . Petitioner.

Vs.

1. Executive Engineer, IPH Division No. II, Shimla-3, HP.

2. Sub Divisional Officer, IPH Mechanical Sub Division, Gumma, Tehsil Sunni, District

Shimla, HP.

. . Respondents.

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

For petitioner : Shri P.P Chauhan, Advocate.

For respondent : Shri Jagdish Kanwar, Dy. DA

AWARD

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

“Whether verbal termination of the services of Shri Amit Kumar S/o Shri Mathu Ram daily

wage workman by the Executive Engineer I&PH Division No.II, Shimla-3 w.e.f. 1.12.1998

without serving notice and without complying the provisions of Industrial Disputes Act,

6621

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1947 is proper and justified? If not, to what back wages, service benefits and relief the

above named workman is entitled to? ”

2. Petitioner filed the claim petition stating that he was engaged as daily waged beldar by

the respondents in February, 1998 in IPH (Mechanical) Sub Division, Gumma, District Shimla HP.

However, on 30.11.1998, the services of petitioner were disengaged without assigning any reason

or without serving any notice. On 27.11.1999 the petitioner had filed OA No. 3369/99 before HP

State Administrative Tribunal which was disposed of on 16.11.2004 for want of jurisdiction.

Consequently, on 3.12.2004 the petitioner raised demand notice and thereafter conciliation

proceedings failed before Labour-cum-Conciliation Officer which led to the present reference.

Petitioner challenged his termination on the ground that conciliation failed on the sole ground that

petitioner had not completed 240 days in preceding twelve months. However, petitioner stated that

after his termination junior workmen to him were retained and respondents also engaged new

workmen. So, petitioner challenged his termination against the provisions of Industrial Disputes

Act, 1947. Consequently, petitioner prayed to set aside his termination and to reinstate him with all

consequential service benefits.

3. The respondent contested the claim of petitioner by filing a reply wherein it was stated

that the petitioner was not engaged in February, 1998 but he was engaged in June, 1998 for specific

work of cleaning of water tanks. On the conclusion of said work, the services of petitioner were not

required. It was further stated that in the year of 1998 the petitioner only worked for 136 days. So,

he did not complete 240 days in a calendar year prior to his disengagement. As the result there was

no question to serve any notice upon him. Respondents stated that only one workman Ritu Raj who

was engaged for maintenance work in December, 1997 was retained but he was senior to the

petitioner. Hence, respondents 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 petitioner by the respondent w.e.f.

1.12.1998 is in violation of the provisions of Industrial Disputes Act, 1947?. . OPP.

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

. . OPP.

3. 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.

Relief.

Reference answered in negative as the services of petitioner have been

illegally terminated per operative part of award.

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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 termination of petitioner w.e.f. 1.12.1998 by the respondents is against

the provisions of Industrial Disputes Act, 1947, hence, the same is not sustainable under law, for

the reasons to be recorded hereinafter.

9. There is no dispute that petitioner was a daily waged workman under the respondent

department. Petitioner has alleged that he was engaged in February, 1998 whereas respondents

stated that petitioner was engaged in June, 1998. Petitioner himself stepped into the witness box as

PW-1 and deposed all the facts which have been stated by him in claim petition. However, on the

other hand, on behalf of respondents RW-1 Shri D.R Sharma, SDO IPH, Shimla was examined

who deposed that petitioner was engaged in June, 1998 for cleaning of water tanks. Petitioner could

not produce any documentary evidence to suggest that he was engaged in February, 1998.

Moreover, from the testimony of RW-1 Shri D.R Sharma as well as mandays chart Ex. RW-1/A, it

is clear that petitioner only worked for 136 days in the year of 1998 prior to his termination.

Petitioner could not produce any evidence to prove that he worked for 240 days prior to his

termination in a calendar year. From the admitted case of petitioner it is clear that he did not work

for 240 days prior to his termination, therefore, there was no occasion and legal requirement for the

respondents to serve a notice upon him as envisaged under section 25-F of Industrial Disputes Act,

1947.

10. However, at the same time, I find sufficient evidence on record to establish that after

the termination of petitioner, respondents engaged new workmen. RW-1 Shri D.R Sharma in his

cross-examination has clarified that the seniority list of daily wagers was drawn division wise and

he produced in evidence the seniority list Ex. PX. This seniority list is revealing that workmen

namely Kewal Ram, Joginder Singh, Narayan Singh, Thakur Dass and Mehar Singh were engaged

on 7/2005, 1.1.2004, 1.11.1999, 23.1.2001 and 18.1.2001 respectively. This fact established that

new workmen were engaged by the respondents after the disengagement of petitioner. This fact

goes to establish that the work was available so, respondents could have easily recalled the

petitioner and re-engage him instead of engaging aforesaid new workmen. Here section 25-H of

Industrial Disputes Act, 1947 is relevant which makes it mandatory for the employer to give an

opportunity to the retrenched workman for reemployment and to offer job or reemployment to him

in preference to other persons. RW-1 has stated that when new workmen were engaged no notice to

recall the petitioner was given. Therefore, there is violation of section 25-H of Industrial Disputes

Act, 1947. As the result, the termination/disengagement of petitioner is not sustainable under law

having been made in violation of section 25-H of Industrial Disputes Act, 1947.

11. Accordingly, for the reasons discussed hereinabove, the termination of services of

petitioner w.e.f. 1.12.1998 is no sustainable under law being in violation of section 25-H of

Industrial Disputes Act, 1947. Hence, this issue is decided in favour of petitioner.

Issue No. 2 .

12. For the reason recorded hereinabove while discussing issue No.1, the termination of

services of petitioner w.e.f. 1.12.1998 by the respondents is hereby set aside and the petitioner is

held entitled to be reinstated in service with seniority and continuity. However, the petitioner is not

entitled to without back wages as it is settled law that back wages cannot be granted mechanically

when the order of termination is declared illegal. Taking into account all the facts and

circumstances of the case, to my mind the petitioner is not entitled to back wages. Accordingly, this

6623

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issue is decided in favour of petitioner.

Relief

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

termination of services of petitioner w.e.f. 1.12.1998 by the respondents is set aside and the

petitioner is ordered to be reinstated in service with seniority and continuity but without back

wages and the reference is answered in negative. 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 2^nd day of January, 2013.

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. 77 of 2009.

Instituted on. 19.8.2009.

Decided on 15.12.2012.

Bidhi Chand S/o Shri Devi Singh R/o Village & P.O Badhar, Tehsil Bhoranj, District

Hamirpur, H.P through Shri J.C Bhardwaj, President HP AITUC, H.Q Saproon, Solan, H.P.

. . Petitioner.

Vs.

The Managing Director, M/s Echier Tractors, Transmission Division (A unit of Tafe Motors

and Tractors Ltd.,) Plot No. 29-30, Sector-II Parwanoo, District Solan, H.P.

. . Respondent.

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

For petitioner : Shri J.C Bhardwaj, AR.

For respondent : Shri Hardeep Verma, Advocate.

AWARD

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

“Whether the dismissal from services of Shri Bidhi Chand S/o late Shri Devi Singh,

Machine Operator by the Vice President, Eicher Tractor Transmission Division (A unit of

Tafe Motors and Tractors Ltd.) Parwanoo w.e.f. 28.6.2008 vide letter dated 28.6.2008 after

serving chargesheet and after holding enquiry is legal and justified? If not to what back

wages, seniority, service benefits and relief the concerned workman is entitled to? ”

2. The petitioner has filed the claim petition stating that he was appointed as machine

operator by the respondent in August, 1984. He remained in continuous service till 28.6.2008 when

he was wrongly and illegally terminated by the respondent on the basis of some enquiry. The

6624

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petitioner challenged the enquire enquiry on the ground that enquiry officer did not serve any

notice upon him and did not inform the date, place and time of enquiry. Earlier a preliminary

enquiry was conducted and its report was also not supplied to the petitioner. The witnesses who

were examined by the management, were biased against the petitioner. The witness Surinder Arora

did not state anything regarding the charges against the petitioner but he stated about the previous

allegations whereas other witness Ashok Sharma, the leave sanctioning authority, stated that

petitioner remained absent from 19.5.2005 to 1.6.2005 but on the other hand he had sanctioned the

leave of the petitioner. The petitioner further stated that the documents relating to the enquiry in

question were not supplied to him with the chargesheet. Further during enquiry, no documents were

supplied to him. Hence, the entire enquiry was illegal and against the principles of natural justice.

As the result, petitioner prayed to set aside the enquiry report as well as his termination orders and

further prayed to reinstate him with all consequential benefits.

3. The respondent contested the claim of petitioner by filing a reply wherein it was

admitted that the petitioner was appointed as a workman by the respondent since August, 1984.

However, it was stated that the petitioner was habitual absentee as he used to remain absent

unauthorisedly and for the same earlier also warnings and punishment of stoppage of increments

and suspension were imposed upon him. It was stated that chargesheets dated 8.6.2005 and

26.4.2006 were served upon the petitioner and he could not give any satisfactory reply,

consequently, domestic enquiry was conducted wherein the charges levelled against petitioner were

proved. The petitioner was informed and he was associated in the enquiry. The enquiry was

conducted as per the principles of natural justice. Therefore, legal punishment was imposed upon

the petitioner.Hence, respondent prayed for the dismissal of the claim petition.

4. Petitioner filed rejoinder wherein he denied all the allegations of respondent in reply

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

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

1. Whether the services of petitioner w.e.f. 28.6.2008 have been dismissed without

holding proper and fair domestic enquiry as alleged?

. . OPP.

2. If issue no.1 is proved to what relief of service benefits, the petitioner is entitled

to?

. . OPP.

3. 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.

Relief.

Reference answered in negative as the services of petitioner have been

illegally terminated per operative part of award.

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Reasons for finding

Issue No. 1.

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

considered opinion that the petitioner was wrongly and illegally terminated by the respondent

without holding proper and fair domestic enquiry. The enquiry in question conducted against the

petitioner is against the principles of natural justice, hence, the same is not sustainable under law.

Consequently, the termination orders of petitioner on the basis of said enquiry report is liable to set

aside for the reasons recorded hereinafter.

10. The petitioner stepped into the witness box as PW-1 and deposed that he proceeded on

leave on the first death anniversary of his father-in-law and initially his leave application was

recommended and subsequently it was manipulated as not recommended by the Engineer.

Thereafter, his wife fell ill, so, he sent Fax mark A for the extension of leave on 24.5.2005. He

tendered in evidence the original Fax Ex. P-3 as well as medical certificate of his wife Ex. P-4. His

testimony is further revealing that he was served a show cause notice Ex. P-1 and he filed reply Ex.

P-2. He has further deposed that during enquiry he submitted written arguments Ex. P-5 but the

enquiry officer again re-opened the enquiry and recorded the statement of senior Engineer Ashok

Sharma. Then he filed a protest letter dated 28.7.2006 Ex. P-6. The petitioner further deposed that

the enquiry officer did not afford opportunity to him to rebut the statement of Ashok Sharma.

11. The respondent has examined Shri G.D Maheshwari, enquiry officer as RW-1. He has

stated that he conducted two enquiries against the petitioner. He has stated that the petitioner was

associated during enquiries and opportunities were given to him to cross-examine the management

witnesses, thereafter, opportunity was given to the petitioner to lead evidence. In his cross-

examination, he has admitted that after the closer of the evidence of the parties, one witness on

behalf of management was called and examined. But there is nothing in his testimony that the

petitioner was informed about the examination of management witness after the closer of evidence

of both the parties and opportunity was given to the petitioner to cross-examine said witness.

12. The enquiry proceedings are Ex. PX. These proceedings are revealing that the

statement of Shri Ashok Sharma witness was recorded in the end. His statement is revealing since

the petitioner and his defence assistant/representative refused to participate in the enquiry, so there

was no question of cross-examination. Consequently, the statement of witness was recorded. But

proceeding dated 29.7.2006 are not revealing that that the petitioner was heard by the enquiry

officer on the point to examine shri Ashok Sharma as a witness, especially when the evidence of

both the parties were over and enquiry was fixed for final arguments. The testimony of petitioner is

revealing that Ashok Sharma was examined as management witness when he had already submitted

his written arguments. The enquiry proceedings Ex. PX do not reveal the reasons why Shri Ashok

Sharma was examined on behalf of management when the evidence of parties were over. The

proceedings dated 29.7.2006 are revealing that the petitioner and his defence assistant/

representative had refused to participate in the enquiry proceeding. To my mind, this conduct of

petitioner is justified because there was apparent biasness on the part of enquiry officer against the

petitioner as he did not hear the petitioner on the point of examination of Shri Ashok Sharma as

management witness at the fag end of enquiry. Moreover, the proceedings dated 29.7.2006 are

silent why the enquiry officer thought it necessary to examine Shri Ashok Sharma at the fag end of

enquiry. Therefore, I am satisfied with the arguments advanced on behalf of petitioner that the

enquiry officer was biased against the petitioner. On this ground, the enquiry proceedings are not

sustainable under law.

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13. Further the petitioner has alleged that he was not supplied with the documents along-

with chargesheet. Again the testimony of enquiry officer (RW-1) is relevant. In his cross-

examination, he has admitted that no document was tagged with the chargesheet. The enquiry

proceedings Ex. PX are revealing that on 20.9.2005 on behalf of management documents Ex. M-1

to Ex. M-22 were tendered in evidence. However, on the same day, copies of those documents were

supplied to the petitioner. But to my mind, those documents could have been supplied to the

petitioner along-with chargesheet and before the commencement of enquiry. As discussed

hereinabove, one management witness Shri Ashok Sharma was examined at the fag end of enquiry

when the enquiry was fixed for final arguments and this witness also tendered in evidence

documents Ex. MW-2/1 to Ex. MW-2/2, copies of these documents were also not supplied to the

petitioner.

14. Hence, it stands established on record that on behalf of management no steps were

taken for the supply of material/documents to the petitioner in advance before the commencement

of enquiry which were relied upon during the enquiry proceeding. I am of the considered opinion

that failure to supply the same to the petitioner before the commencement of enquiry would render

the entire enquiry proceedings unsustainable under law and the dismissal of the petitioner is also

not sustainable as reasonable opportunity to defend was denied to the petitioner. Here, I am

supported by the law laid down by Hon’ble Supreme Court of India in the matters of 2011-II-LLJ-

627 (SC) and 2002-I-LLJ-544 (SC).

15. Consequently, for the aforesaid reasons, the dismissal from service of petitioner w.e.f.

28.6.2008 is illegal and unjustified in the absence of proper and fair domestic enquiry. Hence, this

issue is answered in favour of petitioner.

Issue No. 2.

16. For the reason to be recorded hereinabove while deciding issue no.1, the dismissal

from services of petitioner w.e.f. 28.6.2008 by the respondent is hereby set aside and the petitioner

is entitled to reinstatement in service with immediate effect with seniority and continuity. However,

the petitioner is not entitled to back wages as it is settled law that back wages cannot be granted

mechanically when the order of termination is declared illegal. Taking into account all the facts and

circumstances of the case, to my mind the petitioner is not entitled to back wages. Accordingly, this

issue is answered in favour of petitioner.

RELIEF

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

dismissal from services of petitioner w.e.f. 28.6.2008 by the respondent is set aside and the

petitioner is ordered to be reinstatement in service with immediate effect with seniority and

continuity but without back wages and the reference is decided in negative. 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 15th day of December, 2012.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

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

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

Ref No. 33 of 2008

Instituted on. 30.6.2008.

Decided on 06.12.2012.

Brij Lal S/o Shri Khajana Ram R/o Village Bughar, P.O Chakkar, Tehsil Arki, District

Solan, H.P.

. . Petitioner.

Vs.

1. The Ambuja-Darla-Kashlog-Mangoo Transport Co-operative Society Ltd., Darlaghat,

Tehsil Arki, District Solan, H.P.

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

. . Respondents.

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

For petitioner : Shri Vijay Sharma, Advocate

For respondent No.1 : Ex-parte.

For respondent No.2 : Shri Peeyush Verma, Advocate.

AWARD

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

“Whether the termination of services of Shri Brij Lal S/o Shri Khajana Ram by the

management of The Ambuja-Darla-Kashlog-Mangoo Transport Co-operative Society Ltd.,

Darlaghat, Tehsil Arki, District Solan, H.P. w.e.f. 31.8.2006 without complying the

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

seniority, back wages and other service benefits the above workman is entitled to? ”

2. The petitioner has filed the claim stating that he was working as booking clerk with the

respondent no.1 w.e.f. 3.3.2004. The petitioner further stated that respondent no.1 was working

under the administrative as well as financial control of respondent No. 2. The respondents

terminated the services of petitioner on 31.8.2006 without following any procedure and against the

provisions of Industrial Disputes Act, 1947. Hence, petitioner prayed to set aside his termination

and further prayed that he be reinstated in service with all consequential benefits.

3. Respondent No.1 was served and initially put appearance through Advocate Shri

Sanjeev Bhushan. However, subsequently none appeared for respondent No.1, consequently,

respondent No.1 proceeded against ex-parte.

4. Respondent No. 2 filed reply wherein preliminary objections as to locus standi,

maintainability, supersession of material facts by the petitioner, estoppel and mis-joinder of parties

were raised. On merits, respondent no.2 stated that there was no relationship of employer and

employee between the parties as the petitioner was never engaged by respondent no.2. So, there

was no question of retrenchment of services of petitioner by respondent no.2. Hence, respondent

No. 2 prayed for the dismissal of the claim petition.

5. No rejoinder was filed by the petitioner. On the pleadings of the parties, the following

issues were framed.

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1. Whether the services of the petitioner w.e.f. 31.8.2008 have been terminated by

the management of the Ambuja-Darla-Kashlog-Mangoo Transport Co-operative

Society Ltd., Darlaghat, Tehsil Arki, District Solan, in an illegal and unjustified

manner without complying the provisions of Industrial Disputes Act, 1947 as

alleged?

. . OPP.

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

entitled to and from whom?

. . OPP.

3. Whether the petitioner has no locus standi against respondent no.2 as alleged?

. . OPR-2.

4. Whether the claim of the petitioner is not maintainable?

. . OPR-2.

5. Whether the petitioner is estopped from filing this petition against respondent

No.2?

. . OPR-2.

6. Relief.

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

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

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

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

under:

Issue No. 1

Partly yes.

Issue No. 2

Entitled to reinstatement in service by respondent No.1 with seniority and

continuity but without back wages.

Issue No. 3

Yes.

Issue No. 4

Yes.

Issue No. 5

No.

Relief.

Reference answered in negative as the services of petitioner have been

illegally terminated by respondent no.1 per operative part of award.

Reasons for finding

Issue No. 1 .

9. In the light of arguments of both the parties and material on record, I find sufficient

evidence to establish that the petitioner was engaged by respondent no.1 and his services were

illegally terminated by respondent No.1. There is no relationship of employer and employee

between respondent No. 2 and the petitioner.

10. The petitioner has stepped into the witness box as PW-1 and he has categorically

deposed that he was working as booking clerk with respondent No.1 society since 3.3.2004. In his

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cross-examination, he has admitted that he was never engaged by respondent No. 2. He has also

admitted that he did not file any claim against respondent No. 2. This specific testimony of

petitioner is sufficient to establish that he was employee of respondent no.1 and was never engaged

by respondent No. 2.

11. The petitioner has categorically stated that he worked continuously w.e.f. 3.3.2004 to

31.8.2006 when his services were wrongly and illegally terminated. This testimony of petitioner

has gone un-rebutted against respondent No.1 who is the employer of the petitioner. The petitioner

has also stated that no notice was served upon his before terminating his services.

12. The aforesaid testimony of petitioner is making it clear that he has worked for 240

days in the preceding year from 31.8.2006. Therefore, his employer i.e respondent No.1 was under

the legal obligation to serve a notice upon the petitioner or to pay one month’s wages and

compensation to the petitioner in lieu of such notice as envisaged under section 25-F of Industrial

Disputes Act, 1947. No such steps were taken by the respondent no.1 before terminating the

services of petitioner. Hence, the termination of petitioner by respondent No.1 w.e.f. 31.8.2008 is

against the provisions of Industrial Disputes Act, 1947 and liable to set aside. Here, Ld. Counsel for

petitioner rightly relied upon the law laid down by Hon’ble Supreme Court in the matter of (2010)

5 SCC- 497.

13. Though, the petitioner has alleged that respondent No. 1 was under the administrative

and financial control of respondent No. 2. But to this effect, I do not find any evidence on record.

Moreover, this plea is not tenable, because respondent No.1 is a co-operative society and it is an

independent body. It cannot be believed that a co-operative society being an independent body

would be under the administrative and financial control of M/s Ambuja Cement Ltd., which is also

another independent body being a company.

14. Accordingly, for the aforesaid reasons issue No.1 is partly answered in favour of

petitioner.

Issue No. 2.

15. For the reason to be recorded hereinabove while deciding issue No.1, the services of

petitioner have been wrongly and illegally terminated by respondent No.1, so, he is entitled to be

reinstated in service with seniority and continuity. Keeping in view facts and circumstances of the

case, the petitioner is not entitled to back wages. Hence, this issue is answered in favour of

petitioner.

Issue No. 3 & 4.

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

reason recoded hereinabove while deciding issue No.1, there is no relationship of employer and

employee between respondent No. 2 and the petitioner as the petitioner has himself has admitted

that he was not engaged by respondent No. 2. So, petitioner has no locus standi to file and maintain

the petition against respondent No. 2 and the claim petition filed by petitioner is not maintainable

against respondent No. 2. Consequently, both these issues are answered in favour of respondent

No. 2.

Issue No. 5

17. I do not find any specific evidence on record to show that the petitioner is estopped to

file the present petition by his own acts, conduct and deeds. In the absence of specific evidence this

issue is answered against respondents.

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RELIEF

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

respondent no.1 and as such the termination of services of petitioner by respondent No.1 w.e.f.

31.8.2006 is set aside and the petitioner is ordered to be reinstated in service with seniority and

continuity but without back wages. The reference is decided accordingly in negative against the

respondent No.1 only. 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 6^th day of December, 2012.

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. 287 of 2002

Instituted on. 16.9.2002.

Decided on 06.12.2012.

Dhian Singh S/o Shri Darshan Singh, though J.C Bhardwaj, President HP AITUC H.Q

Saproon Solan, H.P. `

. . Petitioner.

Vs.

The Vice President, Joyco India Ltd., Village Katha, P.O Baddi, District Solan 173205.

. . Respondent.

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

For petitioner : Shri J.C Bhardwaj, AR.

For respondent : Shri Rajeev Sharma, Advocate.

AWARD

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

“Whether the domestic enquiry conducted by M/s Joyco India Ltd., Baddi District

Solan, H.P against Shri Dhian Singh S/o Shri Darshan Singh workman and

termination of his services w.e.f. 13.5.2000 on the basis of enquiry report is fair and

justified? If not what relief of service benefits including seniority and back wages the

above workman is entitled to? ”

2. The petitioner has filed the claim petition on the ground that he was serving in the

respondent establishment since 11.11.1995. The workmen had filed a demand notice dated

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6.10.1999 which was pending for adjudication. Despite the pendency of demand notice, the

respondent illegally terminated the services of petitioner w.e.f. 13.5.2000 on the basis of one-sided

illegal enquiry. In fact, the respondent did not inform the petitioner about the initiation of enquiry

as well as appointment of enquiry officer. During the pendency of enquiry, no suspension

allowance was paid to the petitioner. The chargesheet was not served upon the petitioner and before

terminating his services proper service of show cause notice was not effected upon him. Before the

initiation of enquiry, the petitioner was not supplied with the copy of documents relied upon by the

enquiry officer, hence, the enquiry was conducted against the principles of natural justice. The

petitioner also challenged his termination on the ground that it was in violation of section 33(2)-b

of the Industrial Disputes Act, 1947 in view of pendency of demand notice dated 6.10.1999. Hence,

petitioner prayed to set aside his termination orders and to reinstate him with all consequential

benefits.

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

objections as to maintainability of the petition and suppression of material facts by the petitioner

were raised. On merits, the respondent admitted that the petitioner was employee of the respondent.

However, it was further stated that the petitioner indulged in grave misconduct during the course of

his employment. In fact, petitioner remained absent from duty without any sanctioned leave w.e.f.

1.11.1999. On 11.11.1999, the respondent management had issued notice to the petitioner asking

him to attend the duties, but in vain. The respondent management again issued a show cause notice

dated 24.11.1999 to the petitioner asking him to resume his duties. When petitioner did not join his

duties, then chargesheet dated 1.12.1999 was issued to him and he was asked to file the reply

within stipulated time, but petitioner did not file any reply. Consequently, Shri R.K Soni was

appointed as an enquiry officer and he conducted the enquiry as per the principles of natural justice.

The petitioner attended one hearing of enquiry and thereafter chose to remain absent, so exparte

proceedings in enquiry were conducted and charges against the petitioner were proved.

Consequently, show cause notice was issue to the petitioner informing him that the respondent

intended to impose penalty of dismissal. The petitioner was asked to file the reply but again

petitioner did not file any reply. The enquiry report was also sent to the petitioner, hence, petitioner

was legally terminated from service in the light of legal and valid enquiry report. The respondent

also stated that the petitioner was gainfully employed, hence, he was not entitled to be reinstated

with consequential service benefits. Hence, 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 were framed.

1. Whether the petitioner has been illegally terminated from service w.e.f. 13.5.2000

on the basis of enquiry report? If so, its effect?

. . OPP.

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

. . OPP.

3. Whether the petition in the present form is not maintainable?

. . OPR.

4. Whether the petitioner is gainfully employed? If so, its effect?

. . OPR.

5. Relief.

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

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

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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 continuity on the same terms and

conditions but without back wages.

Issue No. 3

No.

Isue No.4

Yes.

Relief.

Reference answered in negative as the services of petitioner have been

illegally terminated per operative part of award.

Reasons for finding

Issue No. 1.

9. In the light of arguments of both the parties and material on record, I am of the

considered opinion that the enquiry conducted against the petitioner is not sustainable under law as

to my mind principles of natural justice have been violated. As the result, the termination of

petitioner from service w.e.f. 13.5.2000 is not sustainable under law.

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

examined himself in evidence whereas on behalf of respondent four witnesses were examined

including the enquiry officer.

11. It is un-disputed fact that the petitioner was employee of the respondent company and

he was absent from his duties since 1.11.1999. The petitioner in his cross-examination has admitted

this fact that he was absent from duties since 1.11.1999. However, the petitioner has stated that he

was not allowed to enter the gate of the premises by the security. It is also undisputed fact that for

the aforesaid absence, the petitioner was chargesheeted and was held guilty and consequently he

was terminated from service by the respondent.

12. It is the case of the respondent that a letter dated 11.11.1999 was issued to the

petitioner asking him to attend the duties but this fact could not be proved with the help of evidence

on record. Although, RW-3 Hardeep Rana, the Plant Manager of respondent has deposed this fact

but he could not produce the copy of letter dated 11.11.1999 and further it could not be proved by

the respondent that copy of said letter was supplied to the petitioner. This witness has further stated

that on 24.11.1999 respondent company issued show cause notice Ex. PW-3/A to the petitioner

vide postal receipt Ex. RW-3/A-1 and registered AD Ex. RW-3/B and Ex. RW-3/C. But the

registered AD does not reveal that the said notice was received by the petitioner. RW-3 has further

stated that on 22.12.1999, the respondent decided to initiate enquiry against the petitioner vide

letter Ex. RW-3/D and R.K Soni was appointed as an enquiry officer. But again service of this

letter upon the petitioner is not proved. So, it is not proved that petitioner was informed about the

appointment of enquiry officer.

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13. Ex. RP-1 is the chargesheet dated 1.12.1999 which bears the signature of Manager

P&A of respondent company. It is not proved on record that copy of said chargesheet was supplied

to the petitioner. The statement of petitioner is revealing that no chargesheet was served upon him.

However, he has further stated that the chargesheet was shown to him on the gate of factory and he

had filed the reply of the same but as per respondent witness, the petitioner did not file any reply to

the chargesheet. First of all, burden was upon the respondent to show that the chargesheet was

served upon the petitioner and copy of same was supplied to him but his burden could not be

discharged by the respondent as there is no documentary evidence on record to show that copy of

chargesheet Ex. RP-1 was supplied to the petitioner.

14. The testimony of petitioner is revealing that he was informed about the enquiry on the

factory gate but no written letter was received by him. The respondent has examined RW-4 Rajesh

Kumar, the enquiry officer who has stated that when he was appointed as enquiry officer, he had

issued notice to the petitioner to appear before him but the petitioner did not appear. I do not find

any force in this testimony of enquiry officer. The enquiry officer has placed on record the copies

of proceedings of enquiry Ex. RW-4/B, Ex. RW-4/C and Ex. RW-4/D. These documents are

revealing that the enquiry started on 4.1.2000 and on that day the worker/petitioner was not present.

As discussed hereinabove, there is no notice to the petitioner to appear before enquiry officer on

4.1.2000. These proceedings are revealing that the notice along-with chargesheet was served

through registered post to the petitioner but it was received back unclaimed. This evidence is

sufficient to suggest that the chargesheet and notice was not received by the petitioner. Ex. RW-4/A

is revealing that the enquiry officer had held that he would inform worker/petitioner through

registered post about the next date of enquiry which was 18.1.2000. Ex. RW-4/C is the copy of

proceedings dated 18.1.2000. It is revealing that on said date petitioner appeared before the enquiry

officer. The petitioner has stated in his testimony that on 4.1.2000 he had gone to the place of

enquiry but the enquiry officer did not turn up, so he wrote letters Ex. P/7 and Ex. P/8 to the Vice

President of the respondent company. However, he has admitted that he appeared before the

enquiry officer on 18.1.2000 when he made a written request vide Ex. RP-3 to conduct the enquiry

in Hindi. This fact has been mentioned by the enquiry officer in proceedings dated 18.1.2000, copy

of which is Ex. RW-4/B. These proceedings are revealing that next date of enquiry for evidence

was fixed for 3.2.2000. But these proceedings are not revealing that the enquiry officer had

supplied the documents to the petitioner as well as list of witnesses. In the absence of such

compliance, the principles of natural justice have been violated as the petitioner was unable to

defend himself effectively. The copy of proceedings of enquiry Ex. RW-4/D is revealing that on

3.2.2000 two witnesses were examined who tendered in evidence documents M-I to M-VI but these

documents were not earlier supplied to the petitioner when he appeared before enquiry officer on

18.1.2000.

15. On 18.1.2000, the enquiry officer did not make any efforts to ask the worker/petitioner

whether he intended to appoint any defence assistant. There is nothing on record to show that

opportunity was afforded to the petitioner to appoint defence assistant. The denial of any such

opportunity is also violation of principle of natural justice.

16. On behalf of respondent it was argued that after the conclusion of enquiry, show cause

notice was served upon the petitioner along-with copy of enquiry report informing him about the

out-come of enquiry and further petitioner was informed that respondent had decided to dismiss

him. But there is no specific documentary evidence on record to show that in fact the copy of

enquiry report was received by the petitioner and he also received show cause notice. Therefore,

there is no occasion for the petitioner to file reply to enquiry report.

17. The respondent has examined RW-1 Shri K.R Chauhan and RW-2 Shri Ramesh Gupta

to prove the extract of attendance register Ex. RA to Ex. RA-6 and letters Ex. RA-7 and Ex. RP-6.

But these documents would not make the enquiry report a legal and valid evidence.

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18. In the light of my aforesaid discussion, it stands established that prior to the initiation

of enquiry against the petitioner for his absence w.e.f. 1.11.1999, no show cause notice was served

upon him. Further it is also proved that the chargesheet was not supplied to the petitioner. At the

same time, the documents relied upon by the enquiry officer during enquiry were not supplied to

the petitioner. The petitioner was not supplied with the list of witnesses by the enquiry officer. Here

the law laid down by the Hon’ble Supreme Court in 2011-II-LLJ-627 (SC) is relevant wherein it

has been held that:

“It was a settled principle of natural justice that if any material was to be relied in

departmental proceedings, a copy of the same must be supplied to the charge sheeted

employee so that he might have a chance to rebut the same.”

19. Further, it also stands established that no opportunity was given to the petitioner to

appoint defence assistant. All these established facts are sufficient to hold that the enquiry was not

conducted in fair and proper manner as the opportunity of being heard was denied to the petitioner.

This resulted into violation of principles of natural justice. As the result, the enquiry report Ex.

RW-3/E is not sustainable under law and liable to set aside. Consequently, the termination of

services of petitioner w.e.f. 13.5.2000 on the basis of aforesaid enquiry report is also not

sustainable and is hereby set aside and quashed.

20. On behalf of petitioner, it was argued that no suspension allowance was paid to him

during enquiry. But in the light of facts of the case, the petitioner was not entitled to any suspension

allowance as he was not suspended and there is no evidence on record to show that after 1.11.1999,

he had attended his duties. As per record, the petitioner remained absent w.e.f. 1.11.1999 till he was

terminated on 13.5.2000. So, for the aforesaid reason in the absence of any suspension order, the

petitioner is not entitled to the suspension allowance.

21. The petitioner also argued that his termination was in violation of section 33(2)-b of

Industrial Disputes Act, 1947 as at that time his demand notice dated 6.10.1999 was pending. The

copy of demand notice Ex. P/2 is produced on record which is revealing that it was submitted from

President and General Secretary of the workers union regarding the working conditions of

workmen. There is nothing in it to show that specific demand pertaining to the petitioner was also

mentioned. On the top of it, there is nothing on record to show that said demand notice was pending

before Conciliation Officer when the termination orders of petitioner were issued. The petitioner

did not produce the relevant record from the Labour-cum-Conciliation Officer to prove said

allegation. Hence, in the absence of any evidence in this regard, the violation of section 33 (2)-b of

Industrial Disputes Act, 1947 is not proved.

22. However, for the reasons discussed hereinabove, the termination of services of

petitioner w.e.f. 13.5.2000 is no sustainable under law being against the principles of natural

justice. Accordingly, this issue is decided in favour of petitioner.

Issue No. 2 & 4.

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

24. For the reason to be recorded hereinabove while discussing issue no.1, the termination

of services of petitioner w.e.f. 13.5.2000 by the respondent is hereby set aside and the petitioner is

held entitled to be reinstated in service with continuity on the same terms and conditions. The

petitioner is not entitled to the back wages as I find sufficient material on record to suggest that

petitioner is gainfully employed.

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25. Although, the respondent has not produced the specific evidence to establish that at the

relevant time the petitioner was gainfully employed but here the cross-examination of petitioner is

relevant wherein he has admitted that he was having kids who are studding in School. At the same

time he has also admitted that he has got landed property. These facts are sufficient to suggest that

the petitioner was having sufficient income. So, it can be safely concluded that after his

termination, the petitioner was gainfully employed. Accordingly, in the light of my aforesaid

discussion, issue No.1 is answered in favour of petitioner whereas issue no.4 is answered in favour

of respondent.

Issue No. 3

25. From the careful perusal of the record, there is nothing to suggest that the petition in

the present form is not maintainable. Hence, this issue is decided against the respondent.

RELIEF

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

termination of services of petitioner w.e.f. 13.5.2000 by the respondent is set aside and the

petitioner is ordered to be reinstated in service with continuity on the same terms and conditions.

The petitioner is not entitled to the 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 December, 2012.

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. 51 of 2007

Instituted on. 25.6.2007.

Decided on 06.12.2012.

Nagin Chand S/o Shri Gulaba Ram R/o Village Gyana, P.O Mangoo, Tehsil Arki, District

Solan, H.P.

. . Petitioner.

Vs.

3. Senior Joint Deputy Chairman, M/s Gujrat Ambuja Cement (Unit Himachal) P.O

Darlaghat, Tehsil Arki, District Solan, H.P.

4. Krishan Kumar Rajgaria (Contractor) C/o M/s Gujrat Ambuja Cement (Unit Himachal)

P.O Darlaghat, Tehsil Arki, District Solan, H.P.

. . Respondents.

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

For petitioner :

Shri Virender Singh, Advocate

For respondent No.1 :

Shri Peeyush Verma, Advocate.

For respondent No.2 :

None.

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AWARD

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

“Whether the termination of services of Shri Nagin Chand S/o Shri Gulaba Ram ex-

driver by the management of M/s Gujrat Ambuja Cement (Unit Himachal) P.O

Darlaghat, Tehsil Arki, District Solan, H.P. (2) Shri Krishan Kumar Rajgaria

(Contractor) C/o M/s Gujrat Ambuja Cement (Unit Himachal) P.O Darlaghat, Tehsil

Arki, District Solan, H.P. w.e.f. 3.4.2004 without complying the provisions of the

Industrial Disputes Act, 1947 as alleged by the workman 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 driver by the

respondents on 18.1.1999 and he did his duties continuously till 3.4.2004 when his services were

wrongly terminated without any notice. Petitioner stated that he completed 240 days in the

preceding twelve months. Therefore, he challenged his termination on the ground that it was

against the provisions of Industrial Disputes Act, 1947. As the result, petitioner prayed to set aside

his termination and he be reinstated in service with all consequential benefits.

3. Respondent No. 1 filed reply wherein preliminary objections as to locus standi, cause

of action, supersession of material facts, estoppel and no relationship of employer and employee

between the parties were taken. On merits, respondent no.1 denied that the petitioner was engaged

as driver on 18.1.1999 and he worked under the replying respondent till 3.4.2004. It was also

denied that the petitioner had completed 240 days in the preceding calendar year under the replying

respondent. It was stated that some time the contractor used to employ the workmen but replying

respondent was having no concern with those workmen employed by the contractor. Hence,

respondent no.1 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 were framed.

1. Whether the termination of services of petitioner by the management of Gujrat

Ambuja Cement, Darlaghat and Shri Krishan Kumar Rajgaria contractor w.e.f.

3.4.2004 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 the petitioner is entitled

to?

. . OPP.

3. Whether the petitioner has no locus standi to file and maintain his case?

. . OPR.

4. Whether the petitioner is estopped to file the present petition by his own act,

conduct and deeds?

. . OPR.

5. Whether there is no employee-employer relationship between the petitioner and

replying respondent?

. . OPR.

6. 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. Evidence of both the parties on the aforesaid issues were recorded.

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

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

under:

Issue No. 1

Partly yes.

Issue No. 2

Entitled to reinstatement in service by respondent No. 2 with seniority and

continuity but without back wages.

Issue No. 3

Partly no.

Issue No. 4

No.

Issue No. 5

Partly yes.

Relief.

Reference answered in negative as the services of petitioner have been

illegally terminated by respondent No. 2 per operative part of award.

Reasons for finding

Issue No.1 & 5.

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

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

evidence on record to establish that the petitioner was engaged as driver by respondent No.2. There

is no evidence to establish that petitioner was directly engaged by respondent No.1. Therefore,

there is no relationship of employer and employee between the petitioner and respondent No.1.

11. The petitioner has stepped into the witness box as PW-1. He has stated that he used to

ply vehicle of respondent No.1 bearing no. HP 51- 1239. He also produced the log book of the

vehicle Ex. PA. He also stated that he was removed from service by respondent No.1 without any

notice and payment of compensation. In his cross-examination, he has stated that no appointment

letter was issued to him by respondent No.1. He has also stated that his wages were being paid by

the respondent No. 2. His testimony is also revealing that his driving test was conducted by one

Kamal Kumar through respondent No. 2.

12. The petitioner did not produce his appointment leter issued by respondent No.1. The

log-book of vehicle no. HP 51- 1239 Ex. PA would not make petitioner employee of respondent

No.1. In the light of aforesaid testimony of petitioner, I have no hesitation to hold that he was

appointed by respondent no.2 and it was respondent No. 2 who used to pay wages to the petitioner.

Therefore, petitioner was employee of respondent No. 2 and he was never engaged by respondent

No.1. As the result, I find substance in the objection taken by respondent no.1 that there was no

relationship of employer and employee between petitioner and respondent No.1.

13. On behalf of petitioner strong reliance was made on the testimony of PW-2 Gian

Chand Verma, the Assistant from the office of P.F Commissioner who proved the EPF slips Ex.

PW-2/A and Ex. PW-2/B of the petitioner. These EPF slips are revealing the name of employer to

be Gujrat Ambuja Cement Ltd. But to my mind, this fact alone would not make the petitioner

employee of respondent No.1 i.e Gujrat Cement Ltd. Here the crossexamination of PW-2 is

relevant. He has stated in his cross-examination that EPF slips Ex. PW-2/A and Ex. PW-2/B fall

under the sub code head. He has also admitted that the subscription of employee of Gujrat Ambuja

Cement is deducted under the PF head whereas the subscription of employee of contractor used to

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be deduced under the PF sub head code. He has further clarified that initially there was no separate

code for the contractors. It was only for the last 5/6 years, the separate code was given to

contractors. Therefore, the testimony of this witness is specific evidence to show that in fact the

EPF subscription of petitioner was deducted under sub code which was issued in favour of

contractor of respondent No.1.

14. Therefore, in the light aforesaid evidence, it is hereby held that the petitioner was

employee of respondent No. 2 who was the contractor. In the regard, I am in agreement with the

testimony of RW-1 Sunil Kumar, Assistant Manager of respondent no.1. He has categorically

stated that the petitioner was employed by the contractor to whom the sub code was allotted by the

Provident Fund Commissioner.

15. The respondent No. 2 has not contested the claim of the petitioner and there is no

evidence on behalf of respondent No. 2. The evidence on record go un-rebutted against respondent

No. 2. For the aforesaid reasons, it stands established that the petitioner was engaged by respondent

no.2. The petitioner has categorically deposed that he worked on daily wages from 19.1.1999 till

3.4.2004 when his services were wrongly terminated. That means during the preceding year from

3.4.2004, the petitioner worked for 240 days, hence, before terminating his services, the respondent

No. 2 was legally required to serve a notice upon the petitioner or to pay one month’s wages and

compensation to the petitioner in lieu of such notice as envisaged under section 25-F of Industrial

Disputes Act, 1947. No such steps were taken by the respondent before terminating the services of

petitioner. Hence, the termination of petitioner is against the provisions of Industrial Disputes Act,

1947 and liable to set aside.

16. Accordingly, for the aforesaid reasons issue No. 1 is partly answered in favour of

petitioner whereas issue no.5 is also partly answered in favour of respondents.

Issue No. 2.

17. For the reason to be recorded hereinabove while deciding issue no.1 and 5, the services

of petitioner have been wrongly and illegally terminated by respondent no.2, so, he is entitled to be

reinstated in service with seniority and continuity. Keeping in view facts and circumstances of the

case, the petitioner is not entitled to back wages. Hence, this issue is ansered in favour of petitioner.

Issue No. 3

18. For the reason to the recoded hereinabove while deciding issue no.1 and 5, the present

petition is not maintainable against respondent No.1 as there is no relationship of employer and

employee between respondent No.1 and petitioner. So, petitioner has no locus standi to file and

maintain the petition against respondent No.1. As far as respondent No. 2 is concerned, the

petitioner was engaged by respondent No. 2 and he has been wrongly terminated by respondent No.

2, therefore, petitioner has got locus standi to file and maintain the petition against respondent No.

2. Consequently, this issue is partly answered in favour of respondents.

Issue No. 4

19. I do not find any specific evidence on record to show that the petitioner is estopped to

file the present petition by his own acts, conduct and deeds. In the absence of specific evidence this

issue is answered against respondents.

RELIEF

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

respondent no.2 and as such the termination of services of petitioner by respondent no.2 w.e.f.

3.4.2004 is set aside and the petitioner is ordered to be reinstated in service with seniority and

continuity but without back wages. The reference is decided accordingly in negative against the

respondent no.2 only. 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 December, 2012.

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. 16 of 2006.

Instituted on 20.2.2006.

Decided on 11.1.2013.

Naseeb Chand S/o Shri Balak Ram R/o Village Banbirpur, P.O. Lodhimajra, Tehsil

Nalagarh, District Solan, HP.

. . Petitioner.

Vs.

The Manager Component & Equipment Ltd. Plot no.120, Baddi Tehsil Nalagarh District

Solan, HP.

. . Respondent.

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

For petitioner: Shri O.P Chauhan, Advocate.

For respondent: Shri O.P Sharma, Advocate.

AWARD

The following reference has been received from appropriate government by this court for

adjudication:

“Whether the termination of services of Shri Naseeb Chand S/o Shri Balak Ram by the

Manager Component & Equipment Ltd. Plot no. 120, Baddi, Tehsil Nalagarh, District

Solan, HP w.e.f. 8.12.2003 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. Petitioner filed the claim petition stating that he was engaged as Lab Attendant by the

respondent w.e.f. 10.6.2002. He was discharging his duties honestly and to the best of his abilities.

However, on 8.12.2003, the petitioner was not allowed by the respondent to do his duties and he

was orally terminated without following any procedure and without giving him any notice.

Consequently, petitioner raised demand notice upon which conciliation proceedings were carried

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out before Conciliation Officer, Solan which led to the present reference. Petitioner prayed to set

aside his termination and further prayed that he be reinstated in service with all consequential

benefits.

3. The respondent contested the claim of the petitioner by filing reply wherein it was

stated that conduct of petitioner was not satisfactory as he used to come late and remained absent.

The petitioner himself had abandoned the job, so, he was not entitled to any relief. Consequently,

respondent prayed for the dismissal of the claim petition.

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

framed.

1. Whether the services of the petitioner have been illegally terminated by the

respondent w.e.f. 8.12.2003 without complying with the provisions of I.D Act,

1947? If so, its effect?

. . OPP.

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

. . OPR.

3. Whether the petitioner abandoned the job? If so, its effect?

. . OPR.

4. 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. It is relevant to mention that earlier the reference was decided by my Ld. Predecessor

vide award dated 30.12.2009 and the award was answered in negative and against the petitioner.

Petitioner preferred CWP No. 3132 of 2010-B which was decided by Hon’ble High Court vide

order dated 11.10.2012 vide which the award was set aside and the case was remanded to this

Court. Hon’ble High Court has directed that opportunity be given to the parties to produce on

record documentary evidence in accordance with law, specifically, the copies of attendance

7. In pursuance of the orders of Hon’ble High Court, petitioner tendered in evidence the

copies of attendance register and thereafter respondent also tendered in evidence documentary

evidence.

8. After evidence of both the parties, I have heard the learned counsel for both the parties

and gone through the record carefully.

9. 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.

Relief.

Reference answered in negative as the services of petitioner were wrongly

and illegally terminated by the respondent per operative part of award.

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Reasons for finding

Issue No. 1 & 3.

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

11. Petitioner has alleged that he worked with the respondent from 10.6.2002 to 8.12.2003

and completed more than 240 days prior to his oral illegal termination. In support of his contention,

petitioner examined himself as well as PW-2 Nirmal Singh who has also worked with the

petitioner. Both these witnesses deposed all the facts stated by petitioner in his claim petition.

12. On the other hand, respondent examined three witnesses, RW-1 Shri S.K Mishra, the

Personnel and Administrative Manager, RW-2 Shri Praveen Swami, Senior Production Supervisor

and RW-3 Shri Amit Dutt, Q.C & R&D Manager in Laboratory. All these witnesses stated that the

petitioner worked as casual labourer and he was irregular in his duties and he himself abandoned

the job.

13. Taking into account the evidence of both the parties on record, it is clear that petitioner

worked with the respondent till December, 2003. On behalf of respondent the main arguments were

that the petitioner could not produce on record convincing evidence to show that he had worked for

more than 240 days in the preceding calendar year. Ld. Counsel for respondent further argued that

the photocopies of the attendance register Ex. PW-1/A to Ex. PW-1/J were not duly proved, hence,

the benefit of same could not be given to the petitioner.

14. After due consideration, I am in agreement with the arguments advanced by Ld.

Counsel for respondent that coies of attendance register Ex. PW-1/A to Ex. PW-1/J could not be

legally proved. Hon’ble High Court has remanded the case back with the direction to afford

opportunities to the parties to legally produce on record the documentary evidence. The petitioner

did not file the certified or authenticated copies of attendance register to show that he worked for

more than 240 days prior to his termination on 8.12.2003. The petitioner could have summoned the

original record and could have compared the same with the photocopies. But no such steps were

taken by the petitioner.

15. However, at the same time, the documents filed on record by the respondent are

relevant. The respondent filed on record Ex. RA copy of letter addressed to the SHO on behalf of

respondent company revealing that on 7.7.2011 a major fire took place in the premises of

respondent, Ex. RB is the copy of daily dairy of Police Station Baddi dated 7.7.2011. So, it is the

admitted case of the respondent that a fire had taken place on 7.7.2011 in which huge loss was

caused and the record of the factory was burnt. So, it could be possible that original attendance

fact that original attendance register has been destroyed and could not be produced in evidence that

is why the photocopies were produced in evidence. Petitioner did not seek the permission of the

Court to lead secondary evidence. So, legally speaking the photocopies of attendance register Ex.

PW-1/A to Ex. PW-1/J are not admissible in evidence.

16. But at the same time, I find sufficient evidence to reveal that petitioner had in fact

worked for more than 240 days in a calendar year prior to his oral termination w.e.f. 8.12.2003. The

petitioner has categorically deposed that he worked with the respondent from 10.6.2002 to

8.12.2003. His version is corroborated by his fellow worker PW-2 Shri Nirmal Singh. The

respondent had taken the plea that petitioner was irregular and latecomer on his duties. So, onus

was upon the respondent to show the irregular attendance of petitioner. The respondent could not

produce any convincing evidence to this effect. The oral statements of witnesses examined by the

respondent are not sufficient to show that petitioner was irregular and latecomer. The respondent

could have produced the documentary evidence to show the aforesaid conduct of petitioner,

especially the attendance register.

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17. From the careful perusal of statements of the witnesses of respondent, it appears that

petitioner was not regular and he used to misbehave with his superiors. Consequently, he was

removed from service by Work Manager. This fact has been deposed by RW-2 Praveen Swami.

Again to this effect that is no convincing evidence on record to reveal that any show cause notice

was issued to the petitioner for his misbehavior or being irregular and thereafter any enquiry was

conducted wherein he was found guilty.

18. The witnesses of respondent have also stated that petitioner himself has abandoned the

job. Since, petitioner was the employee of respondent and in case he abandoned the job it was the

duty of respondent/employer to issue notice to him asking him to join duties failing which a

disciplinary action would follow. No such notice was issued by the respondent, so, it cannot be held

that the petitioner himself had abandoned the job.

19. Therefore, taking into account all the aforesaid evidence on record, I am of the opinion

that petitioner had in fact worked for more than 240 days prior to his oral termination on 8.12.2003

and there is nothing on record to show that he was not regular on his duties or he had misbehaved

with his superiors. In the absence of any notice and enquiry in this regard, petitioner cannot be held

guilty. The evidence led by the petitioner seems to be reliable and trustworthy. Since, petitioner had

completed 240 days in a calendar year prior to 8.12.2003, so, it was obligatory upon the respondent

to serve one month’s notice or to pay him one month’s wages and compensation as required under

section 25-F of Industrial Disputes Act, 1947. But no such steps were taken by the respondent.

Thus, there is violation of provisions of section 25-F of Industrial Disputes Act, 1947. Accordingly,

the termination of petitioner is not sustainable under law and liable to set aside. Hence, for the

aforesaid reasons, issue No.1 is decided in favour of petitioner whereas issue No.3 is decided

against the respondent.

Issue No. 2.

20. For the reason recorded hereinabove while deciding issue no.1 & 3, the termination of

services of petitioner w.e.f 8.12.2003 is hereby set aside and the petitioner is entitled to

reinstatement in service with immediate effect with seniority and continuity. However, the

petitioner is not entitled to back wages as it is settled law that back wages cannot be granted

mechanically when the order of termination is declared illegal. Taking into account all the facts and

circumstances of the case, to my mind the petitioner is not entitled to back wages. Accordingly, this

issue is answered in favour of petitioner.

Relief

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

termination of services of petitioner w.e.f. 8.12.2003 by the respondent is set aside and the

petitioner is ordered to be reinstatement in service with immediate effect with seniority and

continuity but without back wages and the reference is decided in negative.

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 11^th day of January, 2013.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

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

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

Ref No. 60 of 2010

Instituted on. 1.5.2010.

Decided on 11.12.2012.

Raj Kumar S/o Shri Sohan Lal C/o Shri Om Dutt Sharma R/o Village and P.O Taksal,

Tehsil Kasauli, District Solan, H.P.

. . Petitioner.

Vs.

The Factory Manager, M/s Anand Aircon Private Ltd. Plot No. 26, Sector-5, Parwanoo,

Tehsil Kasauli, District Solan, H.P.

. . Respondent.

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

For petitioner : Shri Niranjan Verma, Advocate

For respondent : Already exparte.

AWARD

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

“Whether the verbal termination of the services of Shri Raj Kumar S/o Shri Sohan Lal by

the Factory Manager, M/s Anand Aircon Private Ltd. Plot No. 26, Sector-5, Parwanoo,

Tehsil Kasauli, District Solan, H.P. w.e.f. 13.1.2009 without serving him chargesheet,

without holding enquiry and without complying the provisions of the Industrial Disputes

Act, 1947 is proper and justified? If not to what back wages, seniority, service benefits

and relief the above aggrieved workman is entitled to? ”

2. The petitioner has filed the claim stating that he was working as an operator in the

respondent company since January, 2007 and worked till 13.1.2009 when his services were

illegally terminated by the M.D/Factory Manager of the respondent. The petitioner was retrenched

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

petitioner filed the claim petition with the prayer to reinstate him with all consequential benefits.

3. The respondent was served but none appeared on behalf of respondent. Consequently,

respondent was proceeded against exparte. Thereafter, the case was fixed for exparte evidence of

petitioner.

As per record, 2.12.2010 was the first opportunity for petitioner to produce exparte

evidence. However, on 2.12.2012, my Learned Predecessor was on leave, hence, the case was fixed

for proper order for 3.1.2010 when my Learned Predecessor was on tour. Consequently, on

9.5.2011 was the first effective opportunity for the petitioner to produce exparte evidence. Since

then till 11.12.2012, petitioner availed as many as nine effective opportunities to lead exparte

evidence. On 11.12.2012, neither petitioner nor any evidence was present. However, Ld. Counsel

for petitioner prayed for another opportunity which was rejected by this Court after due

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consideration, since, petitioner availed more than sufficient opportunities. As the result, the

petitioner evidence was closed by the order of Court.

5. Since, there was no evidence on behalf of petitioner in support of his claim, therefore,

it cannot be held that he was illegally terminated by the respondent on 13.1.2009 without

complying with the provisions of Industrial Disputes Act, 1947. Hence, the claim petition filed by

the petitioner is dismissed and the reference is answered in affirmative and against the petitioner.

Consequently, the petitioner is not entitled to any relief of service benefits from this Court. 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 11th day of December, 2012.

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. 40 of 2010

Instituted on. 12.4.2010.

Decided on 05.12.2012.

Rajesh Kumar Dass S/o Shri Arjun Dass C/o Shri Avtar Singh Chandel, Village

Kishanpura, Tehsil Nalagarh, District Solan, H.P.

. . Petitioner.

Vs.

The General Manager, M/s Isoloyed Engineering Technologies Ltd. Kishanpura, District

Solan, H.P.

. . Respondent.

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

For petitioner : None.

For respondent : Shri Sandeep Dutta, Advocate.

AWARD

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

“Whether the termination of services of Shri Rajesh Kuamr Dass S/o Shri Arjun Dass by

the management of M/s Isoloyed Engineering Technologies Ltd. Kishanpura, District

Solan, H.P. w.e.f. 30.6.2008 without complying the provisions of the Industrial Disputes

Act, 1947 is legal and justified? If not what relief of service benefits including seniority

and compensation the aggrieved workman is entitled to? ”

2. The copy of aforesaid reference was also sent to the petitioner/workman Rajesh Kumar

Dass by the Labour Commissioner, H.P. Initially Shri Niranjan Verma, Advocate appeared on

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behalf of petitioner and availed opportunities to file claim petition. After having availed so many

opportunities, petitioner failed to file any claim petition, hence, my Ld. Predecessor held to dispose

of the reference on merits. The case was listed to file reply by respondent. Accordingly, respondent

filed reply and stated that the demand raised by the petitioner was incorrect. In fact the petitioner

was on probation and joined the duties with respondent on 30.6.2007. But the petitioner was in the

habit of remaining absent without any sanctioned leave. So, the respondent on 30.6.2008

terminated the services of petitioner and offered him his full & final dues. The petitioner refused to

receive the same. For the absence of petitioner there was no medical certificate or any request for

leave from his side. Consequently, respondent prayed to decide the reference against the petitioner.

3. Since the petitioner has not filed any claim petition and also not led any evidence,

therefore, it could not be held that the respondent had terminated the services of petitioner on

30.6.2008 without complying the provisions of Industrial Disputes Act, 1947. Hence, petitioner is

not entitled to any relief of service benefits from this Court. Consequently, the reference is decided

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 5th day of December, 2012.

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. 285 of 2002

Instituted on. 16.9.2002.

Decided on 06.12.2012.

Rajesh Sharma S/o Shri Braham Dutt, though J.C Bhardwaj, President HP AITUC H.Q

Saproon Solan, H.P.

. . Petitioner.

Vs.

The Vice President, Joyco India Ltd., Village Katha, P.O Baddi, District Solan 173205.

. .Respondent.

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

For petitioner : Shri J.C Bhardwaj, AR.

For respondent : Shri Rajeev Sharma, Advocate.

AWARD

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

“Whether the domestic enquiry conducted by M/s Joyco India Ltd., Baddi District Solan,

H.P against Shri Rajesh Sharma S/o Shri Brahm Dutt workman and termination of his

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services w.e.f. 13.5.2000 on the basis of enquiry report is fair and justified? If not what

relief of service benefits including seniority and back wages the above workman is

entitled to? ”

2. The petitioner has filed the claim petition on the ground that he was serving in the

respondent establishment since 22.3.1996. The workmen had filed a demand notice dated