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&&&&&&&&

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 24^th May, 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

325/01

Smt./Shri Baldev & Others V/s I&PH Solan

15-5-2013

149/2007

Sh. Antu Yadev V/S Sidhartha Super Spining Mills

Nalagarh.

15-5-2013

151/2006

Sh. Kundan Lal V/s HRTC

16-5-2013

29/2011

Sh. Mohima Chand V/s Collector of Forest

16-5-2013

30/2011

Sh. Pawan Kuamr V/S –do-

16-5-2013

50/2011

Sh. Sukh Ram V/S –do-

16-5-2013

100/2011

Sh. Liyakat Ali V/s DFO Khalini

18-5-2013

99/2013

Sh. Sher Singh V/s -do-

18-5-2013

By order,

Sd/-

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

_________

IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL-CUM-LABOUR COURT, SHIMLA

Ref no. 325 of 2001

Instituted on 26-12-2001

Decided on 15-5-2013

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1. Baldev Singh S/o Shri Shiv Ram R/o Vilalge Bhag Salai, P.O Janedeghat, Tehsil

Kandaghat, District Solan, HP.

2. Vireder Singh S/o Shri Sewak Ram R/o Village Jadiyal, P.O Nagali via Chail, Tehsil

Kandaghat, District Solan, HP.

. . Petitioner.

The Executive Engineer, HP Irrigation & Public health Division, Saproon, District Solan,

HP.

. . Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner:

Shri B Vashishtha, Advocate.

For respondent:

Shri Jagdish Kanwar, Ld. DDA.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:—

“Whether the termination of Shri Baldev Singh S/o Shri Shiv Ram and Shri Virender

Singh S/o Shri Sewak Ram daily wages beldar by the Executive Engineer I&PH

Division, Solan, HP without any notice and without complying with section 25F/25N of

the I.D Act, 1947 is legal and justified? If not to what back wages, seniority, service

benefits and relief the concerned workmen are entitled to?”

2. Both the petitioners have filed joint claim petition stating that they were engaged by

the respondent in September, 1992 and Feb., 1995 respectively and remained in the employment till

1-9-1999 when their services were wrongly and illegally terminated by the respondent without

complying with the provisions of Industrial Disputes Act, 1947. Both the petitioners stated that they

have completed 240 days in the employment in a calendar year, therefore, they were entitled for the

protection of section 25-F of Industrial Disputes Act, 1947. No notice was served upon them before

terminating their services. Petitioners further stated that after their termination the respondent

retained junior workmen and also recruited new workmen and thereby violated the provisions of

section 25-G and 25-H of the Industrial Disputes Act, 1947. Consequently petitioners prayed to set

aside their termination and to reinstate them with full back wages and consequential service

benefits.

3. Respondent contested the claim petition by filing reply wherein preliminary objections

as to jurisdiction, maintainability, abandonment of job by the petitioners and limitation were raised.

On merits, respondent did not deny that the petitioners were engaged in October, 1992 and Feb.,

1995 respectively and they worked in the department. However, respondent denied that both the

petitioners were terminated. The respondent stated that the petitioner never completed 240 days of

continuous service in a calendar year as required under law. It was also stated that no fresh

workmen were recruited after both the petitioners abandoned the job. Consequently, respondent

prayed for the dismissal of the claim petition.

4. Petitioners filed rejoinder wherein they denied preliminary objection taken by the

respondent in reply and further reasserted the facts already stated by them in claim petition.

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

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

section 25-F/N of the Industrial Disputes Act, 1947?.

. OPP.

2. Whether this Court has no jurisdiction to adjudicate upon the dispute involved in the

present reference?

. . OPR.

3. Whether the petition is barred by time?

. . OPR.

4. Whether the petitioners had abandoned the job on their own?

. . OPR.

5. Relief.

6. It is relevant to state that initially the award was passed by this Court on 11-7-2008

which was set aside by the Hon’ble High Court in CWP No. 1475/2008 dated 20-5-2007 and the

case was remanded to this Court with the direction to give findings on issue no.4 stated

hereinabove as to the abandonment of job by the petitioners. Therefore, this Court again decided

the case vide award dated 6-7-2010 which was also set aside by the Hon’ble High Court in CWP

No. 5884 of 2011-F and CWP No. 2924 of 2011-C dated 12-9-2012. Hon’ble High Court directed

the respondent/State to place on record complete material for the just decision of this case. After

receiving back the file from Hon’ble High Court on remand the case was registered against its old

number and as per directions of Hon’ble High Court respondent produced in evidence the relevant

record of the case. Opportunity was also afforded to the petitioner to file documentary evidence in

order to rebut the documentary evidence filed by the respondent. Consequently, petitioners also

filed on record documents.

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 points are as

under.

Issue No.1:

No.

Issue No.2:

No.

Issue No.3:

No.

Issue No.4:

No.

Relief:

Reference answered accordingly in favour of petitioners and against the

respondent per operative part of award.

Reasons for findings

Issue No.1:

9. In support of this issue both the petitioners stepped into the witness box as PW-1 &

PW-2 and deposed that they worked continuously for 240 days in a calendar year. They tendered in

evidence copies of mandays chart Ex. P-1 and Ex. P-2. To rebut the case of petitioners, respondent

examined Shri Ashwani Sharma, JE IPH Sub Division Kandaghat who stated that the petitioners

never completed 240 days in a calendar year.

10. From the careful perusal of Ex. P-1 and Ex. P-2 it is clear that petitioners have not

completed 240 days in a calendar year from 1992 to 1999. In order to get the benefits of section

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25-F of Industrial Disputes Act, 1947, petitioners were to prove that they have completed 240 days

in preceding year from 1-9-1999. But there is no evidence to establish that in the preceding year

from 1-9-1999 both the petitioners have completed 240 days. The petitioners did not produce any

receipt of wages to show that they had worked for 240 days in a calendar year. They also did not

examine any co-worker. Burden was heavily upon the petitioners to prove this issue and in the

absence of specific evidence, petitioners have failed to discharge this burden. Since, the petitioners

have failed to prove that they have worked for 240 days in preceding calendar year from 1-9-1999,

then, they are not entitled to the protection of section 25-F of the Industrial Disputes Act, 1947.

Since, the evidence were led by the petitioner to prove that they have worked continuously for 240

days in a calendar year which is requirement under section 25-F of Industrial Disputes Act, 1947.

This plea of petitioners is sufficient that they have not pressed their claim under section 25-N of

Industrial Disputes Act, 1947.

11. Accordingly, this issue is decided against the petitioners.

Issue No. 2 :

12. After due consideration, I am not in agreement with the plea raised by the respondent

that this court has no jurisdiction. The petitioners have raised an industrial dispute by filing a

demand notice and industrial dispute was accordingly referred by the appropriate government to

this Court for adjudication. It is undisputed fact that both the petitioners were engaged by the

respondent on daily wages basis. Therefore, I am of the opinion that this Court received a proper

reference which can be legally adjudicated upon by this Court. Hence, issue no.2 is answered

against the respondent.

Issue No. 3 :

13. I do not find any evidence on this issue on behalf of respondent. However, being legal

issue I am of the opinion that the provision of limitation Act do not apply to the dispute under I.D

Act as it was held by the Hon’ble Supreme Court in the matter of (1999) 6 SCC 82 that the

provisions of Article 137 of limitation Act, 1963 are not applicable to the proceedings under the ID

Act and 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. But in this case

respondent has not led any evidence on this issue of limitation. Consequently, for the aforesaid

reasons, it can be safely concluded that this petition is not time barred. Hence, this issue is decided

against the respondent.

Issue No. 4 :

14. After hearing both the parties and going through the record carefully, I do not find

specific evidence on record to show that petitioner have abandoned the job. Although, RW-1 Shri

Ashwani Sharma, JE IPH Sub Division Kandaghat has stated that petitioner were not retrenched

but they have left their job but at the same time he has admitted in his cross-examination that no

notice was issued to the petitioners regarding their absence from duty. To my mind, if petitioner

had not reported for duty w.e.f. 1-9-1999 then it was obligatory upon the respondent to issue notice

to petitioners to resume the work but no such notice was issued to the petitioners. The evidence on

record is revealing that muster rolls were issued for the month of September, 1999 and in

subsequent month. That means the work was available with the respondent. In the absence of any

specific evidence, I have no hesitation to hold that petitioners had not abandoned the job but in fact

they were retrenched.

15. Now, we have to see whether the retrenchment of petitioners is sustainable under law.

A per the directions of Hon’ble High Court it has to be seen whether the retrenchment of petitioners

is in violation of section 25G & 25-H of the Industrial Disputes Act, 1947.

1500

jkti=] fgekpy izns'k] 7 twu] 2013@17 T;s"B 1935

16. On behalf of respondent the documents Ex. RX to Ex. RX-19 were filed on record

before this Court after the case was received back from Hon’ble High Court on remand. Ex. RX-12

and Ex. RX-13 are the muster rolls of both the petitioners Baldev Singh and Virender Singh which

establish that they were engaged by the respondent in 1992 and 1995 respectively. Ex. RX-16 to

Ex. RX-18 are the muster rolls of workmen namely Suresh Kumar, Rattan, Vijay and Medh Ram

revealing that they were engaged by the respondent in 1997. That means all the said persons were

engaged after the petitioners and these persons are junior to petitioners.

17. On behalf of petitioners copy of reply Ex. PA-2 was produced in evidence which was

filed by the respondent before Hon’ble High Court in CWP No. 2924 of 2011. In said reply the

respondent has admitted that S/Shri Medh Ram, Suresh Kumar, Joginder etc. were engaged in

1996-1997 and they were not engaged after the abandonment of work by the petitioners. As

discussed hereinabove, it has been held that the petitioners never abandoned the work but they were

in fact retrenched. In the aforesaid reply the respondent has also admitted that the aforesaid workers

were engaged in 1996-1997 and they continuously worked with the respondent. This specific

admission of the part of respondent established that after 1-9-1999 junior workmen to both the

petitioners were retained by the respondent. Both the petitioners when stepped into the witness box

as Pw-1 & PW-2 have also categorically deposed that the junior workmen to them are still

continuing on the rolls of department after their retrenchment and to this effect there is no cross-

examination. Since, the fact stated in examination-inchief by both the petitioners has not been

specifically questioned in cross-examination by the respondent, hence, this fact goes to suggest that

respondent has admitted that junior workmen to both the petitioners were retained in job after

1-9-1999 when both the petitioners were retrenched. Therefore, the retrenchment of petitioners is in

violation of the provisions of section 25-G of the Industrial Disputes Act, 1947 which reads as

under:

“Procedure for retrenchment.- Where any workman in an industrial establishment,

who is a citizen of India, is to be retrenched and he belongs to a particular category of

workmen in that establishment, in the absence of any agreement between the employer

and the workman in this behalf, the employer shall ordinarily retrench the workman

who was the last person to be employed in that category, unless for reasons to be

recorded the employer retrenches any other workman”.

18. The aforesaid provision makes it obligatory on the part of employer o follow the

principle of first come last go. In other words, the junior workman is to retrench first. But in this

case juniors were retained whereas both the petitioners being senior were retrenched. Hence,

termination of both the petitioners w.e.f. 1-9-1999 is against the provisions of section 25-G of

Industrial Disputes Act, 1947 which is not sustainable under law. Hence, this issue is decided in

favour of petitioners.

Relief :

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

termination of services of petitioners w.e.f. 1-9-1999 by the respondent is set aside and the

petitioners are ordered to be reinstated in service with seniority and continuity. However, the

petitioners are 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 petitioners are not entitled to 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 17th day of May, 2013.

By order,

Sd/-

Presiding Judge,

Industrial Tribunal-cum-Labour Court, Shimla.

1501

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IN THE COURT OF PURENDER VAIDYA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. No. 149 of 2007

Instituted on. 14-12-2008

Decided on 15-5-2013

Antu Yadav S/o Shri Kripal yadav, Sidhartha Labour Coloney-106, Village Khera, P.O &

Tehsil Nalagarh, District Solan, HP.

.. Petitioner.

The Managing Director, M/s Sidhartha Super Spinning Mills Ltd., Khera Tehsil Nalagarh,

District Solan, HP.

. . Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner :

Shri Rupesh Sharma, Advocate.

For respondent :

Shri Rajeev Sharma, Advocate.

AWARD

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

“Whether not taking of joining after availing leave on medical ground by the

Management of M/s Sidhartha Super Spinning Mills Ltd., Khera Tehsil Nalagarh,

District Solan, HP of Shri antu yadav S/o Shri Kripal Yadav and finally terminating

his services w.e.f. 16-3-2006 without any charge sheet and enquiry is legal and

justified? If not, what seniority, back wages and service benefits the aggrieved

workman Shri Antu Yadav is entitled to?”

2. The petitioner filed the claim petition stating that he was engaged by the respondent as

operator in the month of December, 1986 and thereafter, the petitioner worked honestly. The

petitioner proceeded on leave w.e.f. 21-1-2006 to 20-2-2006 after getting the same sanctioned from

the respondent management. The petitioner could not join his duties due to his ailment.The

petitioner informed the respondent to extend his leave on the ground of illness vide registered post

dated 21-2-2006. After recovering from illness, the petitioner went to the respondent management

on 20-3-2006 but he was not allowed to join the duties. The petitioner intended to submit medical

certificate but he was not heard and removed from service without any enquiry or chargesheet.

Hence, petitioner challenged his termination w.e.f. 16-3-2006 being illegal. He also prayed to

reinstate him with all consequential benefits including seniority and back wages.

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

objections as to maintainability and supersession of material facts by the petitioner were taken. On

merits, respondent stated that the petitioner was to join his duties on 21-2-2006 but he did not turn

up and as per standing orders of the respondent the name of workman was to be struck off from the

rolls if he would remain absent for eight consecutive days. The petitioner was wrong doer, hence,

his name was struck off from the roll vide letter dated 17-3-2006. So, there was no illegality in

terminating the services of petitioner. The case of petitioner did not fall under retrenchment as

petitioner himself failed to join his duties due to his own omission. Consequently, respondent

prayed for the dismissal of the petition.

1502

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4. Petitioner filed rejoinder wherein he denied all the averments made by the respondent

in reply and further reasserted the facts already stated by him in claim petition.

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

1. Whether not taking of joining after availing leave on medical ground by the

management of respondent of petitioner and finally terminating his services w.e.f.

16-3-2006 wihout any chargesheet and enquiry is illegal and unjustified as alleged?

.. OPP.

2. If issue no.1 is proved to what seniority, back wages and service benefits the petitioner

is entitled to?

. . OPP.

3. Whether the petitioner has abandoned the job of his own as alleged? . .OPR.

4. Whether the petitioner is gainfully employed as alleged?

. . OPR.

5. Relief.

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

was pressed or claimed. Petitioner led evidence on the aforesaid issues whereas respondent failed to

lead any evidence despite affording many opportunities, hence, the evidence of respondent was

closed by the order of the Court.

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 for reinstatement with seniority and continuity but without back

wages.

Issue No. 3

No.

Issue No. 4

Yes.

Relief.

Reference answered in negative against the respondent per operative part of

award.

Reasons for finding

Issue No.1 :

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

considered opinion that the termination of services of petitioner w.e.f. 16-3-2006 is not sustainable

under law, hence liable to be set aside for the reasons to be recorded hereinafter.

10. From the pleadings of the parties, it is not disputed that petitioner joined the

respondent company in December, 1986. It is also undisputed fact that petitioner proceeded on

sanctioned leave w.e.f 21-1-2006 to 20-2-2006 and petitioner could not join his duties on

21-2-2006. As per petitioner he could not recover from illness and he had sent a request through

1503

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registered post, whereas the respondent has taken the plea that petitioner remained absent and as

per standing orders for absence of eight consecutive days, the name of petitioner was struck off

from the rolls of the respondent management.

11. Petitioner Antu Yadav stepped into the witness box as PW-1 and deposed all the facts

as stated by him in claim petition. He produced in evidence the copy of postal receipt Ex. P-1 vide

which he had sent request for extension of leave. The respondent did not dispute that petitioner was

on sanctioned leave w.e.f. 21-1-2006 to 20-2-2006 on the ground of his illness. So, it cannot be held

that the petitioner remained absent willfully from 21-2-2006 onwards. Since, his illness was

accepted by the respondent, therefore, we have to appreciate the request of the petitioner which was

sent through registered post Ex. P-1 that he could not recover from illness, therefore, he had applied

for the extension of leave. The cross-examination of petitioner is suggesting that respondent struck

off the name of petitioner for his absence for more than eight consecutive days in view of standing

orders.

12. The respondent has placed on record the copy of standing orders. Para 13 (g) of

standing orders is revealing that absence in a year for more than eight days without leave being

sanctioned or after leave is refused or absence on account of arrest or detention for more than 15

days would be the ground for termination of workman. These standing orders are revealing that the

absence should be without sanctioned lave. In other words the absence should be willful without

any reason. But in the present case the petitioner was on sanctioned medical leave w.e.f. 21-1-2006

to 20-2-2006. So, after 20-2-2006 without hearing the petitioner it cannot be held that he remained

willfully absent especially when he sent request for extension of leave through registered post.

Here, I am of the opinion that respondent should have issued a notice to the petitioner to join his

duties failing which the presumption could be drawn that petitioner remained willfully absent.

Further, the respondent should have chargesheeted the petitioner for willful absence and the matter

should have been inquired into. In the absence of any show cause notice, chargesheet and enquiry,

the action taken by the respondent against the petitioner is not sustainable being violative of

principle of natural justice. The petitioner has been thrown out from the service without hearing

him. The petitioner was engaged by the respondent in December, 1986. That means he remained in

service for nineteen years. There is nothing on record to show that the past conduct of petitioner is

not good and he was habitual absentee.

13. Consequently, taking into account all the facts it stands established that not taking of

joining after availing leave on medical ground by the respondent of petitioner and finally

terminating his services w.e.f. 16-3-2006 without any chargesheet and enquiry is not sustainable

under law and liable to set aside. Hence, this issue is decided in favour of petitioner and against the

respondent.

Issue No. 2 :

14. For the reason recorded hereinabove while discussing issue no.1, the termination of

services of petitioner w.e.f. 16-3-2006 by the respondent is hereby set aside. As the result, petitioner

is entitled for reinstatement with seniority and continuity. However, the petitioner is not entitled to

back wages as there is nothing on record to suggest that after 16-3-2006 the petitioner was not

gainfully employed. 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 partly decided in favour of

petitioner.

Issue No. 3 :

15. For the reasons recorded hereinabove while deciding issue no.1, this issue is also

decided against the respondent.

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Issue No. 3 :

16. Although, respondent could not lead any evidence to suggest that petitioner was

gainfully employed after his termination but at the same time it cannot be believed that after his

termination on 16-3-2006 petitioner being technical hand remained without job and was unable to

earn his livelihood. Taking into account all the facts and circumstances of the case, to my mind the

petitioner was gainfully employed after this termination w.e.f. 16-3-2006. Accordingly, this issue is

decided in favour of respondent.

Relief :

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

termination of services of petitioner from w.e.f. 16-3-2006 by the respondent is set aside and the

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

back wages. The reference is answered accordingly in favour of petitioner. 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 15^th Day of May, 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

Ref. No. 151 of 2006

Instituted on. 18-11-2006

Decided on. 16-5-2013

Kundan Singh S/o Shri Jaiya Ram R/o Village Chanjah, P.O Kulah Sub Tehsil Kupvi,

Tehsil Chopal, District Shimla, HP.

. . Petitioner.

Versus

1. The Managing Director, Himachal Road Transport Corporation, Main Bus Stand

Shimla-3.

2. The Deputy Divisional Manager (Hqurs), Himachal Road Transport Corporation, Head

Office, Shimla-3.

. . Respondents.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner:

Shri M.L Sharma, Ld. Csl.

For respondent:

Ex-parte.

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AWARD

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

adjudication:

“Whether the termination of services of Shri Kundan Singh S/o Shri Haiya Ram

workman by the (1) The Managing Director, Himachal Road Transport Corporation,

Main Bus Stand Shimla-3.

(2) The Deputy Divisional Manager (Hqurs), Himachal Road Transport Corporation, Head

Office, Shimla-3 w.e.f. 24-4-2001 without complying the provisions of the Industrial

Disputes Act, 1947 as alleged by het 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 claim petition stating that he was initially appointed as coal

boy by the respondent for 89 days in October, 1995. Thereafter, he was appointed as Peon w.e.f.

16-10-1999 and he continued till 23-4-2001 when his services were wrongly and illegally

terminated by the respondent. The petitioner stated that he completed 240 days in every calendar

year but no notice was served upon him before his termination. Hence, his termination was against

the provisions of Industrial Disputes Act, 1947. Petitioner further stated that the respondent

retained junior person to him thereby violated the principle of last come first go. 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 preliminary

objections as to maintainability, limitation, false and frivolous nature of claim were raised. On

merits, respondent admitted that the petitioner was engaged as coal boy in 1995 but he was engaged

for 30 days only. The services of petitioner were for specific period, so, after that specific period

his services came to an end. He used to be reemployed as per the work requirement. The petitioner

did not complete 240 days in a calendar year, hence, there was no question of serving any notice

upon him. Respondent denied that junior persons to petitioner were engaged after his termination.

Consequently, respondent prayed for the dismissal of the claim.

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

respondent in reply and further reasserted the facts already stated by him in claim petition.

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

1. Whether the service of petitioner has been illegally temianted w.e.f. 24-4-2001 without

complying with the provisions of Industrial Disputes Act, 1947? 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 present petition is not maintainable?

.. OPR.

4. Relief.

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

was pressed or claimed. Both the parties led evidence on the aforesaid issues.

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7. It is relevant to state that initially the claim of petitioner was decided by my Ld.

Predecessor vide award dated 31-8-2009 and the reference was decided accordingly. However, in

CWP No. 7522 of 2011 decided on 30-7-2012, Hon’ble High Court set aside the award and

remanded the same to decide afresh after affording opportunity to both the parties to bring on

record additional material and adduce evidence.

8. Consequently, the reference was registered against its original number and opportunity

was afforded to both the parties to lead fresh evidence and bring on record fresh record. Both the

parties availed said opportunity and led oral as well as documentary evidence. When the case was

listed for final arguments none appeared on behalf of respondent, hence, respondent was proceeded

against exparte.

9. I have heard exparte arguments and gone through the record carefully.

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

under:

Issue No. 1

Yes.

Issue No. 2

Entitled for reinstatement with seniority and continuity but without back

wages.

Issue No. 3

No.

Relief :

Reference answered in negative against the respondent per operative part of

award.

Reasons for finding

Issue No.1 :

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

considered opinion that the termination of services of petitioner w.e.f. 24-4-2001 is in violation of

the provisions of Industrial Disputes Act, 1947, hence liable to be set aside for the reasons to be

recorded hereinafter.

12. It is undisputed fact that petitioner was initially engaged as coal boy by the respondent

in 1995 and thereafter he was appointed as Peon. The petitioner has stepped into the witness box as

PW-1 and deposed all the facts stated by him in his claim petition. He produced in evidence copies

of his appointment orders from time to time Ex. PW-1/B to Ex. PW-1/J. The careful perusal of

these orders are revealing that initially on 16-10-1999 the petitioner was appointed as part time

peon for 89 days till 12-1-2000 and thereafter, from 13-1-2000 to 10-4200. Then he was again

engaged as part time peon for 89 days w.e.f. 1-5-2000 to 28-7-2000. Lastly, he was engaged for 89

days w.e.f. 27-10-200 to 23-1-2001. These different orders after regular breaks are revealing that

only notional breaks were given to the petitioner in order to defeat the statutory provisions of the

Industrial Disputes Act, 1947. It is settled law that these breaks cannot be taken into account to give

any benefit to the respondent i.e the employer. Here, I am supported by the law laid down by their

Lordships of Hon’ble Supreme Court reported in Haryana State Electronics Development

Corporation Limited Vs Mamnl, (2006) 9 SCC 434. that appointment for a short period (89 days)

and termination of services at the end of the said period and reappointment after a gap of one day,

such action of termination and reappointment repeated again and again for a period of about one

year and a half year, in such circumstances, the Hon’ble Supreme Court has held the termination

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not bonafide but adopted to defeat the object of the Act. Thus it is not covered by section 2 (oo)

(bb) of the Industrial Disputes Act, 1947. Their lordships of the Hon’ble Supreme Court has held as

under:—

“Section 2(oo) (bb) of the Industrial Disputes Act reads as under:

“2. (oo) (bb) termination of the services of the workman as a result of the non-renewal of

the contract of employment between the employer and the workman concerned on its

expiry of such contract being terminated under a stipulation in that behalf contained

therein.”

“…It is not possible for us to accept the aforesaid plea raised at the hands of the

management on account of the fact that the factual position, which has not been

disputed, reveals that the respondent workman was repeatedly working on 89 days

basis. It is, therefore, clear that the intention of the management was not to engage the

respondent workman for a specified period, as alleged, but was to defeat the rights

available to her under section 25-F of the Act. The aforesaid practice at the hands of

the petitioner management to employ the workman repeatedly after notional break

clearly falls within the ambit and scope of unfair labour practice.”

Similarly our own Hon’ble High Court in case shri Manoj Kumar sharma Vs. HRTC &

Another in CWP No. 39 of 06 dated 28-5-2007 has held that the intention of the

management was not to engage the respondent workman for a specified period was to

defeat the rights of a workman under section 25-F of the Act as in that case also the

petitioner was initially appointed for 89 days and after giving him fictional breaks,

reappointed for another 89 days followed by one year appointment. The practice has

been adopted by the management of HRTC to defeat the provisions of section 25-F of

the Industrial Disputes Act, 1947 which amounts to unfair labour practice. In the

instant case also the petitioner was initially appointed for 89 days and after giving him

notional breaks, reappointment for another 89 days followed by others appointments

for 89 days as is evident from Ex. PW-1/B to Ex. PW-1/J.

13. On behalf of respondent RW-1 Shri Dharm Pal appeared into the witness and deposed

that he only brought the record of services of petitioner till 30-4-1997 and he did not bring the

subsequent record. Although, the aforesaid appointment letters of petitioner are revealing that

petitioner was engaged as part time peon but there is nothing in appointment letters for how many

hours the petitioner was required to work in a day. The petitioner in his testimony has categorically

deposed that the post of peon in respondent corporation is still vacant. That means the work is still

available but respondent has not given appointment to the petitioner after 23-1-2001 it shows

melafide on the part of respondent.

14. The petitioner has also placed on record copy of award passed by this Court in

reference no. 228 of 2002 dated 9-8-2009 wherein similarly placed peon who was engaged as part

time basis namely Naresh Kumar was given the relief. His termination by the respondent was set

aside being violative of provisions of section 25-F of Industrial Disputes Act, 1947.

15. For the aforesaid reasons the notional breaks in service of petitioner after 89 days

cannot be looked into. To my mind, petitioner has continuously worked in 2000-01 for more than

240 days in a calendar year prior to his termination w.e.f. 24-1-2001. It is undisputed fact that no

notice was served upon the petitioner before his termination. Under section 25-F of Industrial

Disputes Act, 1947 the respondent was required to serve one month’s notice to the petitioner or in

lieu of that to pay one month’s wages and compensation. But no steps were taken by the

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respondent. Consequently, taking into account all the facts, the termination of services of petitioner

w.e.f. 24-4-2001 is hereby set aside being violative of provisions of section 25-F of Industrial

Disputes Act, 1947, hence, issue no. 1 is decided in favour of petitioner and against the respondent.

Issue No. 2 :

16. For the reason recorded hereinabove while discussing issue no.1, the termination of

services of petitioner w.e.f. 24-4-2001 by the respondent is hereby set aside. As the result, petitioner

is entitled for reinstatement 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 decided in favour of

petitioner.

Issue No. 3 :

17. There is nothing on record to suggest that the claim of petitioner is not maintainable,

hence this issue is decided against the respondent.

Relief :

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

termination of services of petitioner from 24-4-2001 by the respondent is set aside and the

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

back wages and as such the reference is answered accordingly in favour of petitioner. 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 16^th Day of May, 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. 29 of 2011

Instituted on. 22-6-2011

Decided on 16-5-2013

Mahima Chand S/o Shri Tota Ram R/o Village Ghaina, P.O Rama, Tehsil Nahan District

Sirmour, HP.

.. Petitioner.

Vs.

The Collector of Forest Settlement Solan and Sirmour at Nahan, District Sirmour, H.P.

. . Respondent.

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Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner :

Shri R.L Garg, Advocate.

For respondent :

Shri Jagdish Kanwar, Dy. DA.

AWARD

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

“Whether the verbal termination of the services of Shri Mahima Chand S/o Shri Tota

Ram chainman by the Collector, Forest Settlement Solan and Sirmour at Nahan

District Sirmour, H.P w.e.f. year, 2007 without serving notice, without holding enquiry

and without complying with the provisions of the Industrial Disputes Act, 1947,

whereas person junior to him have been retained by the employer, as alleged by the

workman is legal and justified? If not, what back wages, service benefits and relief the

above named workman is entitled to?”

2. The petitioner filed the claim petition stating that he was engaged on daily wage basis

by the respondent in the month of January, 1995. The petitioner used to work for number of days

since 1995 to 2008. It is further alleged that the respondent did not follow the principle of last come

first go as junior workmen to petitioner namely Shyam Singh, Ramesh Kumar, Sukhbir Singh, Man

Singh and Rameshwar are still working with the respondent and even their services have been

regularized on completion of eight years of service, hence, the retrenchment of petitioner was

illegal. Consequently, petitioner filed the claim petition challenging his termination and he further

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

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

objection as to maintainability was taken. The respondent also stated that the petitioner was

engaged in seasonal work on daily wages and in fact the petitioner did not complete 240 days in a

calendar year prior to his retrenchment. At the end of every season, the services of petitioner were

not required, so, there was no termination or retrenchment of the petitioner. All the labourers were

engaged in accordance with seniority. On merits, the respondent stated that the petitioner was

engaged in the year 1995 and worked upto year 2008 with intermediate breaks. The petitioner never

completed 240 days in twelve calendar months in each calendar year. It is stated that the only those

daily waged mazdoors who have fulfilled the terms and conditions of eight years of continuous

service with 240 days in a calendar year have been regularized. The engagement and

disengagement of the workers was done as per the principle of last come first go. No juniors to the

petitioner were retained. Consequently, respondent prayed for the dismissal of the claim petition.

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

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

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

1. Whether the termination of the petitioner by the respondent w.e.f. year 2007 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.

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

was pressed or 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 for reinstatement with seniority and continuity but without back

wages.

Relief

: Reference answered in negative per operative part of award.

Reasons for finding

Issue No. 1 :

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

considered opinion that the termination of petitioner w.e.f. year, 2007 by the respondent is against

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

the reasons to be recorded hereinafter.

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

department. 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

respondent RW-1 Shri Sunikl Kumar Dy. Ranger, Nahan was examined who deposed that

petitioner was engaged in 1995 on daily wages basis for seasonal work. PW-2 Shri krishan Kumar

has proved the copy list seniority list Ex. P-1 of petitioner which was signed by him. From the

testimony of RW-1 Shri Sunil Kumar as well as seniority list Ex. P-1, it is clear that the petitioner

has not worked for 240 days in a calendar year prior to his retrenchment. Petitioner could not

produce any evidence to prove that he worked for 240 days prior to his termination in a calendar

year. It is well settled that where the workman has not produced any evidence to show that he had

worked for more than 240 working days preceding his termination, the petitioner is not entitled to

any protection under section 25-F of the Industrial Disputes Act, 1947. Here, I am supported by law

laid down by Hon’ble Supreme Court reported in AIR 2006 S.C. 110 in which it was held that:—

“In case workman claims to have worked for more than 10 years as daily wager—

Apart from oral evidence workman has not produced any evidence to prove fact that

he has worked for 240 days---No proof of receipt of salary or wages or any record or

order in that regard was produced: no co-worker was examined; muster roll produced

by employer has not been contradicted—Workman has failed to discharge his burden

that he was in employment for 240 days during preceding 12 months of date of

termination of his service—Workman not entitled for protection of Section 25-F

before his service was terminated.”

Since the petitioner has failed to prove on record that he had worked for 240 days in a

calendar year prior to his retrenchment, therefore, there was no occasion and legal requirement for

the respondent to serve a notice upon him as envisaged under section 25-F of Industrial Disputes

Act, 1947.

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

the termination of petitioner, respondent engaged new workmen. RW-1 Shri Sunil Kumar in his

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cross-examination has admitted that petitioner had worked w.e.f. 1995 to 2008 and S/Shri Shyam

Singh, Ramesh Kumar and Sukhbir Singh daily wagers were engaged for the first time in 1999.

This witness has further admitted that no notice was served upon the petitioner to resume his duties.

PW-2 Shri Krishan kumar produced seniority list of daily wagers Ex. P-1 which is revealing that

workmen junior to petitioner are still working with the respondent. This fact established that when

the petitioner was retrenched in 2007, junior workmen to him were retained in employment by the

respondent. This is violation of section 25-G of Industrial Disputes Act, 1947 which envisaged the

principle of first come last go. Since, the aforesaid juniors were retained by the respondent in

employment, so, the respondent could have easily retrenched them in the year of 2007 when the

petitioner was retrenched. Petitioner being the senior was entitled to be retained by the respondent.

RW-1 has stated that no notice to recall the petitioner was given. Therefore, the retrenchment of

petitioner is in violation of the provisions of section 25-G of the Industrial Disputes Act, 1947

which reads as under:

“Procedure for retrenchment.- Where any workman in an industrial establishment,

who is a citizen of India, is to be retrenched and he belongs to a particular category of

workmen in that establishment, in the absence of any agreement between the employer

and the workman in this behalf, the employer shall ordinarily retrench the workman

who was the last person to be employed in that category, unless for reasons to be

recorded the employer retrenches any other workman”.

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

petitioner w.e.f. year 2007 is no sustainable under law being in violation of section 25-G of

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

Issue No. 2 :

13. For the reason recorded hereinabove while discussing issue no.1, the termination of

services of petitioner w.e.f. year 2007 by the respondent 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 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 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. year, 2007 by the respondent 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 16^th day of May, 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. 30 of 2011

Instituted on. 22-6-2011

Decided on 16-5-2013

Pawan Kumar S/o Shri Phool Singh R/o House No. 2165/12 Katch Tank Nahan District

Sirmour, HP.

. . Petitioner.

The Collector of Forest Settlement Solan and Sirmour at Nahan, District Sirmour, H.P.

. . Respondent.

Reference under section 10 of the Industrial Disputes Act, 1947

For petitioner :

Shri R.L Garg, Advocate.

For respondent :

Shri Jagdish Kanwar, Dy. DA.

AWARD

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

“Whether the verbal termination of the services of Shri Pawan Kumar S/o Phool

Singh chainman by the Collector, Forest Settlement Solan and Sirmour at Nahan

District Sirmour, H.P w.e.f. year, 2005 without serving notice, without holding enquiry

and without complying with the provisions of the Industrial Disputes Act, 194,

whereas person junior to him have been retained by the employer, as alleged by the

workman is legal and justified? If not, what back wages, service benefits and relief the

above named workman is entitled to?”

2. The petitioner filed the claim petition stating that he was engaged on daily wage basis

by the respondent and worked till Jan., 1998. Thereafter, the petitioner worked continuously till

2005. It is further alleged that the respondent did not follow the principle of last come first go as

junior workmen to petitioner namely Shyam Singh, Ramesh Kumar, Sukhbir Singh, Man Singh and

Rameshwar are still working with the respondent and even their services have been regularized on

completion of eight years of service, hence, the retrenchment of petitioner was illegal.

Consequently, petitioner filed the claim petition challenging his termination and he further prayed

that he be reinstated in service with all consequential benefits.

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

objection as to maintainability was taken. The respondent also stated that the petitioner was

engaged in seasonal work on daily wages and in fact the petitioner did not complete 240 days in a

calendar year prior to his retrenchment. At the end of every season, the services of petitioner were

not required, so, there was no termination or retrenchment of the petitioner. All the labourers were

engaged in accordance with seniority. On merits, the respondent stated that the petitioner was

engaged in the year 1998 and worked upto year 2008 with intermediate breaks. The petitioner never

completed 240 days in twelve calendar months in each calendar year. It is stated that the only those

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daily waged mazdoors who have fulfilled the terms and conditions of eight years of continuous

service with 240 days in a calendar year have been regularized. The engagement and

disengagement of the workers was done as per the principle of last come first go. No juniors to the

petitioner were retained. Consequently, respondent prayed for the dismissal of the claim petition.

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

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

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

1. Whether the termination of the petitioner by the respondent w.e.f. year 2005 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.

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

was pressed or 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.

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

under:

Issue No. 1

: Yes.

Issue No. 2

: Entitled for reinstatement with seniority and continuity but without back

wages.

Relief

: Reference answered in negative per operative part of award.

Reasons for finding

Issue No.1 :

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

considered opinion that the termination of petitioner w.e.f. year, 2005 by the respondent is against

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

the reasons to be recorded hereinafter.

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

department. 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

respondent RW-1 Shri Sunil Kumar Dy. Ranger, Nahan was examined who deposed that petitioner

was engaged in 1998 on daily wages basis for seasonal work. PW-2 Shri krishan Kumar has proved

the copy list seniority list Ex. P-1 of petitioner which was signed by him. From the testimony of

RW-1 Shri Sunil Kumar as well as seniority list Ex. P-1, it is clear that the petitioner has not

worked for 240 days in a calendar year prior to his retrenchment. Petitioner could not produce any

evidence to prove that he worked for 240 days prior to his termination in a calendar year. It is well

settled that where the workman has not produced any evidence to show that he had worked for

more than 240 working days preceding his termination, the petitioner is not entitled to any

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protection under section 25-F of the Industrial Disputes Act, 1947. Here, I am supported by law