jkti=] fgekpy izns'k

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f”keyk] ohjokj] 11 tqykbZ] 2013@20 vk"kk<+] 1935

fgekpy izns'k ljdkj

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

79&jkti=@2013&11&07&2013 ¼1927½

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order that Shri Bahadur Singh, Additional District and Sessions Judge, Sirmour at Nahan shall

continue in service after attaining the age of 50 years till the next review.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

order that Shri Krishan Kumar, Civil Judge (Senior Division)-cum-JMIC (I), Nurpur shall continue

in service after attaining the age of 50 years till the next review subject to out come of the inquiry

report and without prejudice to the pending inquiry.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

order that Shri S.L.Sharma, District and Sessions Judge, Solan shall continue in service after

attaining the age of 55 years till the next review.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The Hon’ble High Court of Himachal Pradesh in exercise of

the powers vested in it under Article 235 of the Constitution of India read with Rule 14 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

order that Shri K.S.Chandel, a member of the H.P.Judicial Service in the cadre of District

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Judges/Additional District Judges, presently posted as Registrar (Judicial) and Judges Branch, High

Court of Himachal Pradesh, Shimla, shall continue in service after attaining the age of 58

years.

The officer will now retire on his attaining the age of 60 years.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

order that Shri Purender Vaidya, District and Sessions Judge, Kullu shall continue in service after

attaining the age of 50 years till the next review.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No. HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

order that Shri Sureshwar Thakur, Registrar (Inspection), Confidential & Budget, High Court of

Himachal Pradesh, Shimla shall continue in service after attaining the age of 50 years till the next

review.

By order,

Sd/-

Registrar General.

__________

HIGH COURT OF HIMACHAL PRADESH, SHIMLA- 171 001

NOTIFICATION

Shimla, the 5th July, 2013

No.HHC/GAZ/14-297/07.—The High Court of Himachal Pradesh in exercise of the

powers vested in it under Article 235 of the Constitution of India read with Rule 15 of the H.P.

Judicial Service Rules, 2004 and all other powers enabling it in this behalf, has been pleased to

1930

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order that Shri C.L.Kochhar, District and Sessions Judge, Hamirpur shall continue in service after

attaining the age of 55 years till the next review.

By order,

Sd/-

Registrar General.

__________

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 25^th June, 2013

No. Sharm (A) 7-1/2005-11 (Award) L-D/Shala.— 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 D/Shala of the

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

Sr.

No.

Case No.

Title of the Case

Date of

Award

229/2012

S/Shri Neelam Kumari V/s M/S Sanjeev

Taxtiles.

3-4-2013

212/2012

Trilok Raj V/s E.E. I&PH, Chamba.

4-4-2013

217/2012

Pawan Kumar V/S -do-

4-4-2013

232/2012

Kewal Krishan V/S -do-

4-4-2013

318/2012

Vijay Kumar V/s -do-

4-4-2013

41/2001

Hari Singh V/s Secy. I&PH Shimla

4-4-0213

22/2010

Dharam Chand V/s S.O. Dharamshala

8-4-2013

292/2012

Dalbir Singh V/s M.D. M/s Adinath Rubber.

18-4-2013

278/2012

Satish Kumar V/s M.D. –do-

18-4-2013

10.

104/2011

Naino Devi V/s D.F.O Pangi.

22-4-0213

11.

216/2012

Ajay Kumar V/s E.E. I&PH Chamba.

22-4-2013

12.

215/2012

Hem Raj V/s -do-

22-4-2013

13.

214/2012

Shamsher Singh V/s –do-

22-4-2013

14.

213/2012

Raj Kumar V/s -do-

22-4-2013

15.

206/2012

Kishori Lal V/s D.F.O. Joginder Nagar.

24-4-2013

16.

131/2012

Inder Singh V/s E.E. I&PH Padhar.

29-4-2013

17.

130/2012

Karam Singh V/s -do-

29-4-2013

18.

107/2012

Ramkali V/s -do-

29-4-2013

19.

106/2012

Sandesh VermaV/s –do-

29-4-2013

20.

105/2012

Budhi Singh V/s -do-

29-4-2013

21.

103/2012

Sunka Ram V/s -do-

29-4-2013

22.

101/2012

Gian Chand V/s –do-

29-4-2013

23.

277/2010

President Red Cross V/s Red Cross

11-4-2013

24.

100/2012

Hardish V/s E.E. I&PH Paddhar

29-4-2013

25.

99/2012

Anil Kumar V/s -do-

29-4-2013

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26.

97/2012

Govind Ram V/s -do-

29-4-2013

27.

06/2013

Prem Singh V/s Principal Chief Conservater

30-4-2013

28.

73/2012

Ashok Kumar V/s Factory Manager Sabar

Paper

1-5-2013

29.

76/2012

Rakehs Kumar V/s -do-

-do-

30.

77/2012

Surinder Pal Singh V/s -do-

-do-

31.

152/2011

Pawan Kumar V/s -do-

-do-

32.

154/2011

Pardeep Singh V/s -do-

-do-

33.

155/2011

Raj Kumar V/s -do-

-do-

34.

156/2011

Makhan Singh V/s -do-

-do-

35.

143/2012

Joginder Singh V/s E.E. HPPWD Joginder

2-5-2013

36.

126/2012

Janak Singh V/s -do-

-do-

37.

128/2012

Ram Singh V/s -do-

-do-

38.

144/2012

Ramesh Kumar V/s -do-

-do-

39.

139/2012

Nek Ram V/s -do-

-do-

40.

129/2012

Baldev Singh V/s -do-

-do-

41.

39/2012

Rani Devi V/s E.E. HPPWD Dharmpur

2-5-2013

42.

136/2012

Kishan Singh V/s E.E. I&PH Padhar

3-5-2013

43.

145/2012

Bimla Devi V/s E.E. HPPWD Joinder Nagar

3-5-2013

44.

146/2012

Hem Singh V/s -do-

-do-

45.

141/2012

Mohan Singh V/s -do-

-do-

46.

117/2012

Pyar Chand V/s -do-

-do-

47.

147/2012

Rajan Kumar V/s -do-

-do-`

48.

45/2011

Om Prakesh V/s Manager L & T

8-5-2013

49.

238/2012

Ravinder Kumar V/s Principal DAV Alampur

13-5-2013

50.

367/2009

Ashok Kumar V/s E.E. I & P.H. Dalhosie

14-5-2013

51.

348/2009

Charan Singh V/s -do-

-do-

52.

420/2009

Prakesh Chand V/s -do-

-do-

53.

379/2009

Amar Singh V/s -do-

-do-

54.

226/2012

Kanoru Ram V/s D.F.O. Suket

15-5-2013

55.

444/2009

Bhuru V/s E.E. HPPWD, Kullu

15-5-2013

56.

83/2012

Chintamani V/s D.F.O. Suket

16-5-2013

57.

06/2011

Rita Sharma V/s Chairman Sushil Pudhir

20-5-2013

58.

36/2011

Madan Lal V/s E.E. HPPWD, Mandi

20-5-2013

59.

24/2011

Tara Devi V/s Principal DAV

20-5-2013

60.

402/2009

Raman Kumar V/s E.E.I& PH, Dalhousie

20-5-2013

61.

383/2009

Rakesh Kumar V/s -do-

-do-

62.

376/2009

Jeevan Singh V/s -do-

-do-

63.

374/2009

Surinder Singh V/s -do-

-do-

64.

335/2012

Sokina Devi V/s E.E. HPPWD, J/Nagar

24-5-2013

65.

329/2012

Kaushalya Devi V/s -do-

-do-

By order,

Sd/-

ACS ( Labour & Employment).

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

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref. No.

: 216/2012

Date of Institution : 17.4.2012

Date of Decision : 22.04.2013

Shri Ajay Kumar s/o Shri Basant Ram, r/o Barotra Mohalla Drobhi, Chamba Town

Chamba, Distt. Chamba, H.P.

..Petitioner.

Versus

The Executive Engineer, I&PH, Division, Chamba, Distt. Chamba, H.P.

..Respondent.

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

For the Petitioner

: Sh. T.R. Bhardwaj, AR

: Sh. I.S. Jaryal, AR

For the Respondent : Sh. Sanjeev Katoch, Dy. D.A.

AWARD

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

adjudication:

“Whether giving breaks in the services of Sh. Ajay Kumar S/O Sh. Basant Ram Barotra

Mohalla Drobhi, Chamba Town Chamba Distt. Chamba, the H.P. from time to time during

the years 1997 to 2005 by the Executive Engineer, I&PH Division, Chamba Distt. Chamba,

H.P. without complying with the provisions the Industrial Disputes Act, 1947, is legal and

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

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

2. The case of the petitioner (as set out in the statement of claim/demand) reads thus:—

“1. That the petitioner was initially engaged on Muster Roll basis by the respondent

as daily waged beldar in the month of May, 1995 and is still working as such.

2. That the petitioner worked continuously in the year 1995 & 1996 and completed

more than 240 days in these 2 years, but during the month of June 1997 the

department has started to give artificial/fictional breaks by allowing work for 18

days in a month to prevent applicant from completing 240 days in a year. The

practice adopted by the respondent to allow 18 days work in a month amounts to

unfair labour practice. The petitioner who always ready and willing to work for

full month, could not be permitted to and be kept on tenterhooks and be exploited

by the respondent department. The respondent has kept close the petitioner from

work in the month of Nov. & Dec. 1997, Jan. 1999, April 1999, May 2000 to

July 2000, Feb. 2001 & April 2001 to Jan. 2002 whereas during this period my

junior workmen had been retained continuously on muster roll.

3. That the cessation of work for the period of intermittent break for 12/13 days in

each month from the year 1997 to April 2006 is due to the fault of the respondent

for which petitioner is no where defaulter and as such, the said period of

intermittent break have to be counted for the calculation of 240 days continuous

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service in each year for the purpose of regularisation of daily waged service into

work charged cadre but respondent has not taken the said period of intermittent

breaks for the calculation of 240 days as such, the action of the respondent is clear

cut violation of Section 25B of ID Act 1947.

4. That the services of the petitioner has been interrupted by allowing the work for

18 days and artificial/intermittent breaks given and not permitted to work for rest

of days in a month by the department for the period from the year 1997 to April

2006 whereas, the junior workmen engaged on muster roll much after the

petitioner in the year 1997, 1998, 1999 & 2000 have been continuously kept on

muster roll for full months regularly it means the sufficient funds and work were

available with the respondent department but the services of the petitioner have

been intentionally interrupted in each month so that petitioner could not complete

the criteria of 240 days in each calendar year for the purpose of regularization in

work charged cadre. The list of such junior workmen is attached herewith as

Annexure-P1. The said action of the respondent is clear cut violation of Section

25 G of ID Act 1947 and also amounts to unfair labour practice on his part.

5. That the junior workmen whose names mentioned in the Annexure-P1 have been

continuously provided work for full month on muster roll by ignoring the

petitioner and their daily waged services have also been regularized by the

respondent department under various 8 years regularization policies of the State

Govt. of HP.

6. That if the services of the applicant would have not been interrupted by giving the

fictional breaks/artificial breaks intentionally by the respondent department and

petitioner also would have been permitted to work for full month instead of 18

days in months from the month June 1997 to April 2006, the service of applicant

would be regular at par with junior workers as named in Annexure-P1. The

services of the Junior workmen has been regularized on the cost of the petitioner

the said action of the respondent is illegal, un-justified, un-constitutional, arbitrary

and also against the principle of natural justice.

7. That the petitioner has never remained close from work at my own since my date

of joining in the department to the date. During this period, petitioner only remain

closed from work as and when respondent has not provided any work on muster

roll to me for which I am no where defaulter. The respondent has given

intermittent breaks to the petitioner in service from time to time intentionally just

to favour the junior workmen favorite to the respondent so that petitioner could

not complete the criteria of 240 days in each calendar year and deprived of from

the benefit of regularisation. As and when the intermittent breaks were given by

the department between the year 1997 to 2006 the services of the junior workmen

kept retained on muster roll.

8. That the applicant has made various requests with respondents time and again to

allow/permit work for full month instead of allowing work only for 18 days on

Muster Roll in a month but nothing has been done by the respondent and all in

vain. At last, the matter has been brought to the notice of the Govt. by the Trade

Union during the year 2006 and the Under Secretary (IPH) to the Govt. of

Himachal Pradesh has issued a letter bearing No-IPH(A)2(B)1-2-2003-Part Dated

Shimla the 27th March, 2006 to all the field offices in which directions have been

passed to permit work for full month (photo copy of the said order is attached

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herewith duly marked as AnnexureP2). In Annexure-P2, the Govt. has clearly

mentioned to the respondent that the court has not recognized these fictional

breaks and have held such person to be in continuous employment on daily waged

basis but even then the respondent has not taken into count the period of fictional

breaks for the calculation of 240 days for the purpose of continuous service.

9. That the applicant has spotless services with the respondent and has never been

charge-sheeted for any act of indiscipline or misconduct and worked with full

devotion. That before passing verbal order of termination of my services, no

charge sheet has been served upon me nor held any inquiry. No opportunity of

personal hearing has been afforded to the petitioner. As such, the action of the

respondent is illegal and unjustified and also against the principle of Natural

justice. The said action of the respondent is also violating the Article 14 and 16 of

the constitution of India. Keeping in view the above facts and circumstances as

stated in the foregoing paras, it is established beyond doubt that respondent has

committed gross violation of statutory provision of Section 25-B & G of ID Act-

1947. The action of the respondent is also melafied arbitrary, unconstitutional,

illegal and unjustified and also against the principle of natural justice and also

amounts to unfair labour practice. Hence, it is therefore prayed to grant following

relief to the petitioner/applicant:—

RELIEF SOUGHT

(a) The period of breaks given by the respondent from time to time between the

year 1997 to April 2006 be declared illegal and un-justified and respondent

be directed to count the breaks period as continuous service for the purpose

of calculation of 240 days in each calendar year from 1997 to 2006.

(b) To direct the respondent to pay the back wages for the period of intermittent

breaks given from time to time between the period from June 1997 to April

2006 as the respondent has kept the petitioner out of work intentionally for

which the petitioner is no where defaulter.

petitioner in work charged cadre from such date from which immediate

junior workmen have been regularized under 8 years regularisation scheme

alongwith all consequential benefits and payment of arrear of difference of

salary/wages etc.

(d) To direct the respondent for the production of original record pertaining to

the case of petitioner.

(e) Any other relief as the Hon’ble court may deem fit”.

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

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

effect that the claim petition is not maintainable in the present form since no legal or fundamental

right of the petitioner has been infringed. The petition is bad on account of delay and laches on the

part of the petitioner.

On merits, paras 1 to 9 of the reply read thus:—

“1. That the contents of this para are not disputed.

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That the contents of para 2 of the claim petitioner are wrong hence denied. A matter of

fact the respondent office have provided the continuous work of more than 240 days to the

petitioner in years 1997 and 2006. For the rest of year i.e. 1997 to 2005, the respondent office due

to non availability of funds and work was not in a position to provide the work for whole of the

month and accordingly, M/Rolls were issued for 15/18/19 and 20 days, The position for which the

petitioner was duly made aware of, Further M/Roll were issued as per availability work and the

verbal request of the petitioner and other similarly situated workmen in the Muster Roll from time

to time. Thus at the time of the employment, it was well with inn the knowledge of petitioners and

others their engagement is for the particulars period i.e. 15/16/19/20 days and the respondent office

is not a position to provide work for whole of the month. The concerned workman after consenting

for the same had reported for duty by marking with presence in the M/Rolls. The detailed is

mandays chart of the Petitioner is being attached herewith Annexure-A.

3. That the contents of Para 3 of the claim petition are wrong hence denied. It is however

submitted that at no stage of his employment the petitioner was ever given the fictional brakes by

the respondent office. The issuance of the M/Roll for the days of 15/16/18/19 and 20 was due to the

non availability of funds and work. The detailed reply has already been given in Para-2-above.

That the contents of Para-4 of the claim petition are wrong hence denied. As has been

discussed above the issuance of the M/Roll for the year 1997 to 2005 for the days of 15/18/19 and

20 is due to non availability of funds. The position which was duly consented by the petitioner and

other similarly situated workmen at the relevant time. It is further submitted that the Annexure P-1

pertains with the workmen engagement by the Respondent office. However the said workmen were

deployed on the scheme/works which were of permanent nature and regular labour was required for

the running and maintenance of the same. On the contrary the petitioner and other similarly situated

workman were deployment on account of special budgetary provision for the augmentation and

enunciation of new schemes. Morever under the Rules the deployment of the labour beyond the

radius of 8 KM. is bessed where as territorial of the jurisdiction of the Respondent office in much

beyond the 8 KM. Thus in accordance to above the preference is given to the local labour for the

schemes running or initiated in a particulars area.

5 and 6 That the contents of para 5 and 6 of the claim petition are wrong hence denied. As

has been discussed above at no stage of services the fictional breaks were ever given to the

petitioner by the Respondent office. A detailed reply has already been given in paras supra. It is

further submitted no objection but so ever was ever raised by the petitioner at the relevant time for

his engagement, for the work which were not of permanent nature. The present dispute has been

raised by the petitioner at a belated stage. It is wrong to alleged that the petitioners had been

discriminated upon by the Respondent office. The regularization of the daily wagers is done as per

the prevailing policy for the state Government. The case of petitioner shall also be considered for

his regularization as per the policy of the state Government as and when he full fills all the

eligibility of criteria.

7. The contents of para 7 of the claim petition are wrong hence denied. The detail reply

has already given in para supra.

8. The contents of para 8 of the claim petition are also wrong and hence denied. How

ever the letter/instructions dated 27.3.2006 has been issued in a different context and is not

applicable to the case of the petitioner.

That the contents of para 9 of the claim petition are also wrong and hence denied. The

non issuance of the M/Roll for whole the month is due to the non availability of funds and work.

These were no malafide attention on the part of respondent office on this account or account of

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disciplinary action against the petitioner, as is being contemplated by the petitioner in this para of

the claim petition”.

In these circumstances, the respondent prays that the petition in hand being meritless be

dismissed.

4. No rejoinder has been preferred by the petitioner.

5. Per order dated 10.10.2012, following issues were struck:

1. Whether the termination of the services/giving breaks in service to the petitioner

by the respondent from time to time during the years 1997 to 2006 is illegal and

unjustified as alleged?

..OPP.

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

..OPR.

3. Whether the petition is hit by the vice of delay and laches on the part of the

petitioner as alleged. If so, its effect?

..OPR.

4. Relief.

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

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

Issue No. 1 :

Yes

Issue No. 2 :

Not pressed

Issue No. 3 :

Not pressed

Relief. :

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

REASONS FOR FINDINGS

Issue No.1

8. The petitioner Shri Ajay Kumar stepped into the witness box as PW1. In his affidavit

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

petition/statement of claim in its entirety.

In the cross-examination, he admitted that even now he is serving the respondent as a daily

wager. He denied that because of the non availability of the budget, work for the entire month

could not be provided to him during different years. He also denied that at the time of the issuance

of the muster rolls, he and his companions were informed that the respondent/department cannot

provide them the work for more than 17 to 20 days. Further, he denied that he has not fulfilled the

criteria for the regularization of his services and has instituted a phoney petition.

9. Conversely, Shri R.C. Kapoor, Executive Engineer, I&PH Division Chamba

(respondent) testified as RW1. In his affidavit Ex. RW1/A preferred as per Order 18 Rule 4 CPC,

he corroborated on oath the contents of the reply filed by him.

In the cross-examination, he admitted that initially the muster roll for the entire month used

to be issued in the name of the petitioner. Subsequently, the muster roll for less days was issued. He

denied that the breaks were given to the petitioner intentionally. He feigned ignorance about the

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fact that S/Shri Prahlad, Rattan Chand and Kishori Lal are junior to the petitioner. He admitted that

all these persons have been regularized. Self stated, the muster rolls for the entire month pertaining

to the work of permanent nature used to be issued in favour of Shri Prahlad etc. and they fulfilled

the criteria for the regularization of their services. He denied that the instructions issued by the

Government per letter dated 27.3.2006 (Ex. RW1/C) were ignored by them.

10. Ex. PW1/B is the copy of the letter dated 27th March, 2006 written by the Principal

Secretary (IPH) to the Government of Himachal Pradesh. As per this letter, all the Executive

Engineers were directed that the labourers should be engaged for the whole month since the Courts

have not recognized the fictional breaks and have held the period of fictional/artificial breaks to be

continuous employment.

11. Mark-A is the list of the junior beldars in the office of the respondent whose services

have been regularized on completion of eight years of service as per the policy of the Government.

12. Ex. RW1/B is the mandays chart relating to the petitioner.

13. Ex. RW1/C is the letter dated 27.3.2006. It corresponds to Ex. PW1/B.

14. Ex. RW1/D is the detail of the daily wagers who were employed after 31.12.1993 uptil

date.

15. Ex. RW1/E is the seniority list of the junior beldars regularized in the office of the

respondent.

16. Ex. Px is the copy of the mandays chart in respect of the regular beldars namely Shri

Prahlad etc. working in I&PH Sub Division Udaipur, Division Chamba.

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

a daily waged beldar in the month of May, 1995 and he is continuously working as such. The

mandays chart Ex. RW1/B unfolds that the petitioner was initially appointed on 01.5.1995.

18. The version of the petitioner is that from June, 1997 to April, 2006 artificial/fictional

breaks were provided to him by the respondent wrongly and illegally. While denying the said fact,

the respondent has pleaded that the muster rolls for lesser days were issued in the name of the

petitioner due to the non availability of the budget.

19. From Ex. RW1/E i.e. the seniority list of the junior beldars regularized by the

respondent, it can be gathered that they were provided the work for 240 days or more in a year by

the respondent. If no work or funds were available with the respondent then why the persons junior

to the petitioner were engaged for more than 240 days by the respondent? The reasons to that effect

being obscure go to show that the respondent is telling nothing else except a bundle of lies. The act

and conduct of the respondent goes to show that either he was resorting to favoritism or acting in a

partisan manner with one set of the workmen so as to deprive them the status and privileges of

permanent workmen entitling them to the regularization of their services as per the policy of the

State. Browsing of the record highlights the glaring discrimination perpetuated by the respondent.

20. The action of the respondent in not issuing intentionally the muster roll for the entire

month to the workman due to no fault of the workman is nothing but unfair labour practice. The

petitioner is to be presumed in continuous and uninterrupted service of the respondent from the

month of June, 1997 to 31.12.2005 (as per reference) as per the provisions contained in Section 25-

B of the Act. The breaks given by the respondent being intentional will have no effect on the

seniority and continuity in service of the workman (petitioner).

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21. While testifying in the Court as PW1, the petitioner has given his age as 42 years. It is

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

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

forced idleness, he is/was not gainfully employed. For these reasons, he is not entitled to the wages

for break period.

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

Issues No. 2 and 3

23. Not pressed.

Relief (Issue No. 4)

24. As a sequel to my findings on issue No.1 above, the instant claim petition succeeds in

part and the same is partly allowed. The breaks given by the respondent to the petitioner up-to

31.12.2005 being artificial/fictional are held to be wrong and illegal. He (petitioner) shall be

entitled to the seniority and continuity in service from the month of June, 1997 except back wages.

The respondent is also directed to consider the case of the petitioner for regularization of his

services as per the policies framed by the State Government from time to time. It is made clear that

if the services of any person junior to the petitioner have already been regularized, he (petitioner)

shall be entitled to the regularization from the date/month of the regularization of the services of his

junior(s). Parties to bear their own costs.

25. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 22nd day of April, 2013.

RAJAN GUPTA,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

_________

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

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref. No.

: 99/2012

Date of Institution : 06.1.2012

Date of Decision : 29.04.2013

Shri Anil Kumar s/o Shri Jalam Ram, r/o Village Kuhalda, P.O. Ropari, Tehsil Joginder

Nagar, Distt. Mandi, H.P.

..Petitioner.

Versus

The Executive Engineer, I&PH, Division, Padhar, Distt. Mandi, H.P.

..Respondent.

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

For the Petitioner :

Sh. N.L. Kaundal, AR

Sh. Vijay Kaundal, Adv.

For the Respondent : Sh. Sanjeev Katoch, Dy. D.A.

AWARD

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

adjudication:

“Whether termination of the services/giving breaks in the services of Sh. Anil Kumar S/O

Sh. Jalam Ram, Village-Kuhalda, P.O. Ropari, Tehsil Joginder Nagar, Distt. Mandi, H.P. by

the Executive Engineer, IPH Division Padhar, Distt. Mandi, from time to time during the

years 1998 to 2000, without complying with the provisions of section 25-F,G & H of ibid

Act, as the abandonments are not proved but admitting non availability of work during

certain periods, as per policy of the Government and availability of funds and indirectly

admitting continuance employment of certain juniors, is legal and justified? If not, what

amount of back wages, seniority, past service benefits and compensation the above worker

is entitled to from the above employer?”

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

services were engaged as a daily wager on muster roll basis by the respondent on 01.9.1998. No

appointment letter/order was issued in his name by the respondent. Instead of engaging the services

for the full month, the respondent used to provide him (petitioner) the work for 15 to 20 days every

month. Fictional breaks were given by the respondent up-to 31.12.2000. He worked for 91 days in

the year 1999 and 201 days in the year 2000. From the year 2000 onwards, he completed more than

240 days of work in each and every calendar year of his engagement till the date of the

regularization of his services. Artificial/fictional breaks were given by the respondent so that he

does not complete 240 days of work as required under Section 25-B of the Industrial Disputes Act,

1947 (14 of 1947, ‘the Act’ for short) for the purpose of regularization as per the policy of the State

Government. After giving the fictional breaks, new/fresh hands were engaged by the respondent.

The names of the newly appointed persons are S/Sh. Om Prakash Soni and Anoop Kumar. They

were not provided the fictional breaks by the respondent. At the time of giving the breaks, the

respondent failed to adhere to the principle of ‘last come first go’. Work and funds were available

with the respondent. The break period is to be counted as continuous service for the purpose of

regularization. The persons junior to him (petitioner) have been regularized earlier to him against

the policy of the Government. Per letter dated 27.3.2006, Principal Secretary (IPH) to the

Government of Himachal Pradesh directed all the Executive Engineers to engage the services of the

daily wagers without any break. Fictional breaks were given to him (petitioner) by the respondent

deliberately which amounts to unfair labour practice. He has continuously worked w.e.f. 01.9.1998.

He completed eight years of service on 31.12.2006 and 10 years of continuous service on

31.12.2008. As per the observations made by the Hon’ble Apex Court in Mool Raj Upadhaya’s

case, he is entitled to the regularization of his services as a work charged beldar w.e.f. 01.1.2009 in

the pay scale of Rs. 4910-10680/- with all other perks and allowances. Now he is working with the

respondent/department on work charge/regular basis. The act and conduct of the respondent is

illegal and unjustified. It is also violative of Sections 25-G and 25-H of the Act.

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

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

“(i) The Hon’ble Court kindly be set aside the illegal period of breaks from 01.10.1998 to

31.12.2000 and directed to respondent to pay the wages of the applicant in breaks

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periods and counted the said period in continuity of services for the purpose of his

regularization.

(ii) The Hon’ble Court again directed to respondent to granted the work charge status to

the applicant after completion of 10 years i.e. 01.01.2009 in the pay scale of rupees

4900-10680/- and further directed to respondent to pay the arrear to the applicant

01.01.2009 to onwards along with 12% interest from the amount due to till the date of

realization the amount.

(iii) The Hon’ble Court further directed to respondent to fix the applicant in beldar

seniority list of work charges/regular above to the junior.

(iv) Any other relief deemed fit may kindly be granted in the favour of applicant”.

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

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

effect that the claim petition is not maintainable in the present form since no legal or fundamental

right of the petitioner has been infringed. The State of Himachal Pradesh is a necessary party to the

petition. It has not been arrayed as a party/respondent. The petition is bad for non-joinder of the

necessary parties. The petition is also hit by the vice of delay and laches on the part of the

petitioner.

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

wager on muster roll basis on 01.9.1998. However, it has been denied that the fictional breaks were

given to the petitioner at any point of time. Continuous work for whole of the month was provided

to the petitioner. He used to work intermittently as per his convenience. Despite of the paucity of

the funds, continuous work for more than 240 days was made available. The petitioner used to

remain absent from duty. As and when he reported for work, his services were engaged. The

services of the petitioner have been regularized w.e.f. 07.10.2010. He (petitioner) is debarred from

claiming parity with the workmen whose names have been divulged by him namely S/Sh. Om

Prakash Soni and Anoop Kumar. Both these workmen were engaged in the year 2002, whereas, the

petitioner is claiming the benefit for the years 1998 to 2000. The services of S/Sh. Om Prakash

Soni and Anoop Kumar were regularized after the regularization of the services of the petitioner.

Sh. Om Prakash stands superannuated. The directive issued by the department per letter dated

27.3.2006 is not applicable since the petitioner used to willfully remain absent from duty. The

policy framed in Mool Raj Upadhaya’s case is not applicable to the case of the petitioner. As per

that policy, one time benefit was given to the employees who had either completed 10 years of

service as on 31.12.1993 or the employees who had rendered one or more year of service, but had

not completed 10 years of service as on 31.12.1993. The petitioner does not fulfill the criteria as

laid down in Mool Raj Upadhaya’s case. The regularization policy dated 08.9.2010 issued by the

Government of Himachal Pradesh applies to the petitioner. Under this policy, the cut off date for

considering an employee for regularization of his services is 31.3.2009 on the completion of eight

years of continuous service with a minimum of 240 days in a calendar year subject to the

availability of the post. Eight years of continuous service is only an eligibility criteria. The

regularization shall be from prospective effect i.e. after the date of the issuance of the orders of

regularization on completion of the codal formalities. The petitioner completed eight years of

continuous service in the year 2009. His services have been regularized as per the policy of the

State. He (respondent) neither indulged in any unfair labour practice nor flouted any provision of

the Act. The petitioner is not entitled to any relief.

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

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

claim and refuted the objections put forth by the respondent.

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5. Per order dated 22.8.2012, following issues were struck:

1. Whether the termination of the services/giving breaks in service to the petitioner

by the respondent from time to time during the years 1998 to 2000 is illegal and

unjustified as alleged?

..OPP.

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

..OPR.

3. Whether the petition is bad for non-joinder of the necessary parties as alleged. If

so, its effect?

..OPR.

4. Whether the petition is bad on account of delay and laches on the part of the

petitioner as alleged. If so, its effect?

..OPR.

5. Relief.

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

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

Issue No. 1 :

Issue No. 2 :

Yes

Issue No. 3 :

Not pressed

Issue No. 4 :

Not pressed.

Relief. :

Claim petition dismissed vide operative portion of the Award.

REASONS FOR FINDINGS

Issue No. 1

8. Shri Anil Kumar (petitioner) stepped into the dock as PW1. In his affidavit Ex. PW1/A

submitted under Order 18 Rule 4 CPC, he reiterated on oath the contents of the petition/statement

of claim in its entirety.

In the cross-examination, he denied that the work for 240 days or more was provided to him

by the respondent during the period of the alleged breaks. He also denied that he used to remain

absent because of which he could not complete 240 days of work. Further, he denied that no

fictional breaks were given to him by the respondent and he has instituted a phoney petition.

9. Conversely, Shri Arun Kumar Sharma, Executive Engineer, I&PH, Padhar

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

In the cross-examination, he denied that the absence of the petitioner was subsequently

marked fraudulently in the muster rolls. Self stated, the petitioner admitted the contents of the

muster rolls and received the payment. He denied that the petitioner and others were given the

breaks depending upon the availability of the work and the budget. He also denied that the persons

junior to the petitioner kept on serving the department continuously.

10. Ex. RW1/A is the mandays chart relating to the petitioner. It corresponds to Ex.

RW1/G.

11. Exts. RW1/B and C are the mandays charts pertaining to S/Sh. Anup Kumar and Om

Prakash respectively.

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12. Ex. RW1/D is the copy of the letter dated 27th March, 2006 written by the Principal

Secretary (IPH) to the Government of Himachal Pradesh. Vide this letter, all the Executive

Engineers were directed to engage the labourers on full month basis as the Courts have not

recognized the fictional breaks and have held such persons to be in continuous employment on

daily wage basis.

13. Exts. RW1/E and F are the copies of the letters dealing with the regularization of the

daily paid/contingent paid workers who have completed eight years or more of service.

14. Exts. P-1 to P-18 are the copies of the muster rolls which were issued by the

respondent in the name of the petitioner and others workmen.

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

a daily wager. From the mandays chart Ex. RW1/A, it can be gathered that the petitioner was

initially

employed

01.9.1998.

Admittedly,

the

petitioner

still

serving

the

respondent/department and his services have already been regularized.

16. Section 25-B of the Act postulates as under:—

“25B. Definition of continuous service- For the purposes of this Chapter,-

(1) a workman shall be said to be in continuous service for a period if he is, for that period,

in uninterrupted service, including service which may be interrupted on account of

sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out

or a cessation of work which is not due to any fault on the part of the workman;

(2) where a workman is not in continuous service within the meaning of clause (1) for a

period of one year or six months, he shall be deemed to be in continuous service under

an employer-

(a) for a period of one year, if the workman, during a period of twelve calendar

months preceding the date with reference to which calculation is to be made, has

actually worked under the employer for not less than-

(i) one hundred and ninety days in the case of a workman employed below

ground in a mine; and

(ii) two hundred and forty days, in any other case;

(b) for a period of six months, if the workman, during a period of six calendar months

preceding the date with reference to which calculation is to be made, has actually

worked under the employer for not less than-

(i) ninety-five days, in the case of a workman employed below ground in a

mine; and

(ii) one hundred and twenty days, in any other case.

Explanation.—For the purposes of clause (2), the number of days on which a

workman has actually worked under an employer shall include the days on which-

(i) he has been laid-off under an agreement or as permitted by standing orders

made under the Industrial Employment (Standing Orders) Act, 1946 (20 of

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1946), or under the Act or under any other law applicable to the industrial

establishment;

(ii) he has been on leave with full wages, earned in the previous years;

(iii) he has been absent due to temporary disablement caused by accident arising

out of and in the course of his employment; and

(iv) in the case of a female, she has been on maternity leave; so, however, that

the total period of such maternity leave does not exceed twelve weeks”.

17. The above quoted Section enjoins a duty upon the respondent/employer to provide the

work for at least 240 days in a period of 12 calendar months to the workman for the purpose of

continuous service. This means that an employer can regulate the working of an employee as per

his needs but keeping in mind the spirit of Section 25-B of the Act an employer/respondent is duty

bound to provide the work for 240 days in a period of 12 calendar months to the employee/

petitioner. In Digwadih Colliery v. Workmen, AIR 1966 SC 75, it has been held that “service for

240 days in a period of 12 calendar months is equal not only to service for a year but is to be

deemed continuous service even if interrupted”.

18. Be it stated that in computing the continuous service, notional breaks of service cannot

be ignored. Regularization of the services of an employee will depend upon his fulfilling the

criteria as laid down by the policies of the State from time to time.

19. Now comes the all important question as to whether artificial breaks were provided by

the respondent to the petitioner as alleged or not?

To my mind, the answer to this query is in the negative. As already mentioned, the mandays

chart Ex. RW1/A unfolds that the services of the petitioner were initially engaged on 01.9.1998.

From the date of his appointment, the petitioner was provided the work for more than 240 days in a

calendar year by the respondent up-to 31.12.2000. However, he worked for less than 240 days in a

calendar year and remained absent from his duties. If the absence of the petitioner was wrongly

marked or a line was wrongly drawn in the muster roll(s) showing that he (petitioner) has not

reported for duty, then why he did not agitate the said fact earlier or at the time of the receipt of the

payment for the working days put in by him and for which he was shown present? The reasons to

that effect being obscure go to show that the petitioner is not speaking the truth. The break period

in question relates to the years 1998 to 2000. The industrial dispute was raised by the petitioner

after more than 10 years. The facts that the petitioner remained tight lipped and complacent about

his rights for such a long period as well as received the payment(s) without any protest speak

volumes about the truthfulness and veracity of his claim. The act and conduct of the petitioner is

nocuous to his cause. Simply because no show cause notice was issued to the petitioner by the

respondent for his willful absence from duty from time to time or no disciplinary proceedings were

initiated against him by the respondent/employer, the same will not come to his (petitioner’s)

rescuetaking into consideration the facts narrated above.

20. Such being the situation, I have no hesitation to conclude that artificial/fictional breaks

were not provided to the petitioner by the respondent. He is not entitled to any relief.

21. This issue is decided against the petitioner and in favour of his opponent.

Issue No. 2

22. Taking into account my findings on issue No.1, it is held that the instant claim petition

is not maintainable in the present form.

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23. This issue is also decided against the petitioner.

Issues No. 3 and 4

24. Not pressed.

Relief (Issue No. 5)

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

meritless and not maintainable fails. It is, therefore, dismissed. Parties to bear their own costs.

26. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 29th day of April, 2013.

RAJAN GUPTA,

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref. No.

: 105/2012

Date of Institution

: 06.1.2012

Date of Decision

: 29.04.2013

Shri Budhi Singh s/o Shri Chuhru Ram, r/o Village Oder, P.O. Bassi, Tehsil Joginder

Nagar, Distt. Mandi, H.P.

..Petitioner.

Versus

The Executive Engineer, I & PH, Division, Padhar, Distt. Mandi, H.P.

..Respondent.

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

For the Petitioner : Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent : Sh. Sanjeev Katoch, Dy. D.A.

AWARD

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

adjudication:

“Whether termination of the services/giving breaks in the services of Sh. Budhi Singh S/O

Sh. Chuhru Ram, Village Oder, P.O. Bassi, Tehsil Joginder Nagar, Distt. Mandi, by the

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Executive Engineer, IPH Division Padhar, Distt. Mandi, from time to time during the years

1998 to 2000 without complying with the provisions of section 25-F,G & H of ibid Act, as

the abandonments are not proved but admitting non availability of work during certain

periods, as per policy of the Governments and availability of funds and indirectly admitting

continuance employment of certain juniors, is legal and justified? If not, what amount of

back wages, seniority, past service benefits and compensation the above worker is entitled

to from the above employer?”

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

services were engaged as a daily wager on muster roll basis by the respondent on 01.4.1998. No

appointment letter/order was issued in his name by the respondent. Instead of engaging the services

for the full month, the respondent used to provide him (petitioner) the work for 15 to 20 days every

month. Fictional breaks were given by the respondent up-to 31.12.1999. He worked for 64 days in

the year 1998 and 173 days in the year 1999. From 01.01.2000 onwards, he completed more than