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fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla-2, the 22^nd August, 2013

No. Sharm (A) 7-1/2005-11 (Award) L-D/Shala.—In exercise of the powers vested under

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

order the publication of awards of the following cases announced by the Presiding Officer, Labour

120&jkti=@2013&03&09&2013 ¼3145½

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Court D/Shala on the website of the Department of Labour & Employment of the Government of

Himachal Pradesh.

Sr.

No.

Case No.

Title of the Case

Date of Award

148/2012

S/Shri Baldev VS E.E.HPPWD, J/Nagar.

11-06-2013

125/2012

Dogri Ram V/s -do-

11-06-2013

116/2012

Lachhi Devi V/S -do-

11-06-2013

114/2012

Virender Kumar V/S -do-

11-06-2013

149/2012

Gian Singh V/s -do-

11-06-2013

112/2012

Dalip Singh V/s -do-

11-06-2013

123/2012

Roshan Lal V/s -do-

11-06-2013

111/2012

Nagender Singh V/s -do-

11-06-2013

142/2012

Shanta Devi V/s –do-

11-06-2013

10.

140/2012

Gantu Ram V/s -do-

11-06-2013

11.

150/2012

Khel Singh V/s E.E. HPPWD, Killar

11-06-0213

12.

332/2012

Bhadri Devi V/s E.E. HPPWD J/Nagar

12-06-2013

13.

324/2012

Parvati Devi V/s –do-

12-06-2013

14.

322/2012

Nanki Devi V/s -do-

12-06-2013

15.

343/2012

Diwan Chand V/s -do-

12-06-2013

16.

368/2012

Gian Chand V/s -do-

12-06-2013

17.

103/2011

Jugal Kishore V/s D.F.O. Nurpur

15-6-2013

18.

373/2012

Pyar Chand V/s E.E. HPPWD, J/Nagar

12-06-2013

19.

369/2009

Sohan Lal V/s E.E. HPPWD Dharampur

20-06-2013

20.

152/2010

Asha Devi V/S -do-

20-06-2013

21.

259/2010

Bhuri Singh V/s G.M. Distt. Industries

20-6-2013

22.

311/2012

Hem Raj V/s E.E. HPPWD, Killer

21-06-2013

23.

70/2012

Rohit Kumar V/s M.D. Adinath Rubber

29-06-2013

24.

71/2012

Karnail Singh V/s -do-

29-06-2013

25.

279/2012

Rano Devi V/s -do-

29-06-2013

26.

181/2012

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

01-07-2013

27.

186/2012

Santosh Kumar V/s -do-

01-07-2013

28.

184/2012

Krishan Kumar V/s -do-

01-07-2013

29.

188/2012

Piar Chand V/s -do-

01-07-2013

30.

161/2012

Om Prakash V/s -do-

01-07-2013

31.

210/20112

Rajiv Chand V/s Director Industries

01-07-2013

32.

157/2010

Desh Raj V/s E.E. HPPWD, Dharampur

02-07-2013

33.

99/2011

Prem Singh V/s -do-

02-07-2013

34.

237/2010

Vimla Devi V/s -do-

02-07-2013

35.

347/2012

Omkar Singh V/s E.E. HPPWD J/Nagar

03-07-2013

36.

385/2009

Safri V/s E.E. I&PH Dalhousie

03-07-2013

37.

371/2009

Chaman Singh V/s E.E. I&PH Dalhousie

03-07-2013

38.

05/2010

Rajinder Singh V/s -do-

03-07-2013

39.

403/2009

Karnail Singh V/s -do-

03-07-2013

40.

06/2010

Inder Singh V/s -do-

03-07-2013

41.

349/2009

Vikram Singh V/s -do-

03-07-2013

42.

484/2009

Kanshi Ram V/s -do-

03-07-0213

43.

401/2009

Karnail Singh V/s -do-

03-07-2013

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44.

350/2009

Krishan Chand V/s -do-

03-07-2013

45.

384/2009

Chaman Singh V/s -do-

03-07-2013

46.

380/2012

Nanak Chand V/s E.E. HPPWD, J/Nagar

03-07-2013

47.

320/2012

Narinder Kumar V/s S.E. HPSEBL, Palampur

04-07-2013

48.

203/2012

Yadvinder KumarV/s L.V Sharma

10-07-2013

49.

162/2012

Ramesh Chand V/s I&PH, Padhar

17-07-0213

50.

169/2012

Kali Dass V/s -do-

17-07-2013

51.

164/2012

Gopal Singh V/s -do-

17-07-2013

52.

163/2012

Inder Singh V/s -do-

17-7-2013

53.

170/2012

Ravinder Kumar V/s -do-

17-07-2013

54.

337/2012

Meena Devi V/s -do-

19-07-2013

55.

330/2012

Narvada Devi V/s -do-

19-07-2013

56.

328/2012

Maya Devi V/s -do-

19-07-2013

57.

336/2012

Urmila Devi V/s -do-

19-07-2013

58.

221/2012

Sher Singh V/s Director Kayakalp Palampur

29-07-2013

By order,

Sd/-

Pr.Secretary ( Labour & Employment).

__________

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

INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.

Ref. No.

181/2012

Date of Institution :

02-3-2012

Date of Decision :

01-07-2013

Shri Arjun Singh s/o Shri Makholi Ram, r/o Village Manoh, P.O. Bassi, Tehsil Joginder

Nagar, Distt. Mandi, H.P.

..Petitioner.

Versus

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

..Respondent

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

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

: Sh. Vijay Kaundal, Adv.

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

AWARD

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

adjudication:

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“Whether termination of the services/giving breaks in the services of Shri Arjun Singh S/O

Shri Makholi Ram, R/O Village Manoh, P.O. Bassi, Tehsil Joginder Nagar, District Mandi,

H.P. from time to time during years 1997 to 2003 by the Executive Engineer, I.&P.H.

Division, Padhar, District Mandi, H.P. without complying with the provisions of Section

25-F, G & H of the Industrial Disputes Act, 1947, 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 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 by the respondent w.e.f. 01.7.1997. He worked under the Assistant

Engineer, I&PH Sub Division, Joginder Nagar. No appointment letter/order was issued in his

favour by the respondent at the time of the employment. His services used to be engaged for 15 to

20 days every month instead of the whole month by the respondent. The latter used to give him the

fictional break for 10 to 15 days every month. Such breaks were given by the respondent up-to

31.12.2003. The breaks were given by the respondent so that he (petitioner) 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 the regularization of his services as per the policy of the State

Government. From the year 2004 onwards he has 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. After

giving the intentional/artificial breaks to him, new/fresh hands were engaged by the respondent.

The newly appointed persons namely S/Sh. Om Prakash Soni and Anup Kumar were not given any

break in service by the respondent. At the time of providing the fictional breaks to him (petitioner)

from 21.12.1997 to 31.12.2003, the principle of ‘last come first go’ was not followed by the

respondent. Work and funds were available with the respondent at the time of his disengagement

from time to time. The fictional break period is required to be counted as continuous service for the

regularization of his (petitioner’s) services. The services of the persons junior to him have already

been regularized by the respondent against the policy of the State. Per letter dated 27.3.2006, the

Principal Secretary (IPH) to the Government of Himachal Pradesh directed all the Executive

Engineers to provide the continuous work to all the daily waged workers without any break. If he

(petitioner) would have been allowed to work without any break, he would have completed eight

years of continuous service on 31.12.2005 and ten years of continuous service on 31.12.2007. In

accordance with the policy of the State Government as framed/approved in Mool Raj Upadhaya’s

case he is entitled to the regularization of his services as a work charged beldar w.e.f. 01.1.2008 in

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

the respondent/department as a beldar on work charge/regular basis. The respondent indulged in

unfair labour practice. His act and conduct is/was also illegal and unjustified as well as violative of

the provisions of Sections 25-F, 25-G and 25-H of the Act.

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

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

“(i) The Hon’ble Court kindly be set aside the illegal period of breaks from 21.12.1997 to

31.12.2003 and directed to respondent to pay the wages of applicant for breaks period

and counted the said period in continuity of service for the purpose of his

regularization.

(ii) The Hon’ble Court kindly be again directed to respondent to grant the work-charge

status to the applicant after completion of 10 years continuous service i.e. w.e.f.

01.01.2008 in the pay scale of Rs.4900-10680/- and further directed to respondent to

pay the arrear to the applicant w.e.f. 01.01.2008 to onwards along with 12% interest

from the amount due to till the date of realization the amount.

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(iii) The Hon’ble Court kindly be further directed to respondent to fix the applicant is

beldar seniority list of work-charge/regular cadre above to 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. Preliminary objections have been taken to the

effect that the claim petition is not maintainable since no legal or fundamental right of the petitioner

has been infringed. The petition is bad for non-joinder of the necessary party viz. the State of

Himachal Pradesh. The claim petition is hit by the vice of delay and laches.

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

wager on 01.7.1997. However, it has been denied that the fictional breaks were provided to the

petitioner during the course of his employment. Continuous work for the entire months was

provided to the petitioner for the period/years he has preferred the instant claim petition except the

year 1999. During the year 1999 the work for 240 days was provided to him. The petitioner was an

intermittent worker. He used to report for duty as per his convenience. In the year 2000, he did not

work even for a single day. Despite the paucity of the funds, work for the whole month or more

than 240 days was made available to the petitioner. As and when the petitioner reported for duty the

muster roll was issued in his name. The petitioner is/was a defaulter. S/Sh. Anup Kumar and Om

Prakash were engaged on 01.10.1999 and 01.10.2001. They worked intermittently from 01.10.1999

to 31.12.2001 and 01.10.2001 to 31.12.2002 respectively. From the years 2002 and 2003 onwards

they are working for 240 days continuously. The services of S/Sh. Anup Kumar and Om Prakash

have been regularized on 03.11.2010. The petitioner is working continuously from the year 2004.

He completed eight years of continuous service on 31.3.2012 as per the policy of the State. His

(petitioner’s) case for regularization will be considered after the sanction is received from the

prospective date. The directions issued by the department per letter dated 27.3.2006 are not

applicable to the case of the petitioner as he used to willfully remain absent from his duties and no

fictional break was ever given to him. The policy framed/approved in Mool Raj Upadhaya’s case

does not apply to the case of the claimant/petitioner. As per the said 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 30th May, 2012 is applicable to the case of the

petitioner. Under this policy the cut off date for considering an employee for regularization is

31.3.2012 on his completing eight years of continuous service with a minimum of 240 days in each

and every calendar year. Eight years of continuous service is only an eligibility criteria. The

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

issued on completion of the codal formalities and the sanction is received from the Government. He

(respondent) did not indulge in any unfair labour practice. No provision of the Act has been flouted.

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.

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 1997 to 2003 is illegal and

unjustified as alleged?

..OPP.

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

..OPR.

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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 : No

Issue No. 2 : Yes

Issue No. 3 : Not pressed

Issue No. 4 : No

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

REASONS FOR FINDINGS

Issue No. 1

8. The petitioner Shri Arjun Singh stepped into the witness box as PW1. In his affidavit

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

petition/statement of claim in its entirety.

In the cross-examination, he denied that he used to remain absent from duties willingly

because of which he could not complete 240 days of work. He admitted that his services have

already been regularized. He denied that he has instituted a phoney petition.

9. Conversely, Shri P.S. Rana Executive Engineer, I&PH, Padhar (respondent) testified

as RW1. He corroborated on oath the contents of the reply filed 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/F.

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

Prakash, respectively.

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. Ex. RW1/E is the copy of the letter dated 30th May, 2012 issued by the Department of

Personnel, Govt. of Himachal Pradesh. It deals with the regularization of the daily

waged/contingent paid workers.

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14. Exts. P-1 to P-33 are the copies of the muster rolls which were issued by the

respondent in the name of the petitioner and other 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 appointed on 01.7.1997. This mandays chart is not in dispute. Admittedly, the petitioner is

still serving the respondent/department and his services have already been regularized.

16. Relying upon CWP No. 5900/2010-F titled as Shyam Lal versus State of Himachal

Pradesh through Secretary (PWD) to the Government of Himachal Pradesh, Shimla and others,

decided on 18.12.2012 by our Hon’ble High Court, the ld. Authorized Representative and counsel

for the petitioner argued that the work for 240 days in a year was not provided to their client by the

respondent wrongly and illegally. The break period is required to be counted for the purpose of

continuous service and their client is entitled to the regularization at an early date than the date on

which his services have been regularized.

On the other hand, the ld. DDA urged that the work for 240 or more days in a year was

provided to the petitioner by the respondent. The petitioner, who was an intermittent worker, used

to remain willfully absent from his duties because of which he could not complete 240 days of

work. No intentional/fictional break was provided to the petitioner at any point of time as alleged.

17. To my mind, the contention of the ld. DDA for the respondent holds the force and is

sustainable for the reasons discussed hereinafter.

18. 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.

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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 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”.

19. 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”. The fiction of law converts service of 240 days in a

period of 12 calendar months into continuous service for one complete year.

20. 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.

21. 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 thinking, 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

01.7.1997. From 21.12.1997 to 20.12.1998, the petitioner was provided the work for more than 240

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

year and remained absent from his duties. The petitioner did not work for a single day in the years

2000 and 2002. Ex. RW1/A also highlights that the petitioner did not work for a single day during

the months of April, 2001 to July, 2001 despite the fact that the muster rolls for the entire months

were issued in his name by the respondent/department. The petitioner cannot be allowed to take

advantage of his own wrongs. If the absence of the petitioner was wrongly marked or muster rolls

for the whole month/year were not issued in the name of the petitioner or a line was wrongly drawn

in the muster rolls 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 1997 to 2003.

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) rescue taking into consideration the facts narrated

above.

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22. So far as Shyam Lal’s case (cited supra) is concerned, there is nothing in the judgment

of the Hon’ble High Court to show that the petitioner/workman Shri Shyam Lal was provided the

work for more than 240 days in a calendar year by the respondent/employer. The mandays chart

produced in that case revealed that the petitioner was prevented from completing 240 days of work

to deprive him the status and privileges of a work charge/regular employee. Further, in Shyam

Lal’s case there is nothing to establish that the payment for the actual working days was received

by the workman without any protest. The same is not the situation in the present case. The catena of

law laid down in Shyam Lal’s case in no way helps the petitioner.

23. 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.

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

Issue No. 2

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

is not maintainable in the present form.

26. This issue is also decided against the petitioner.

Issue No. 3

27. Not pressed

Issue No. 4

28. Reference No. 41/2001 (RBT No.403/04) titled as Sh. Hari Singh vs. The Secretary,

Irrigation & Public Health, Government of H.P., Shimla and two others was disposed of by this

Court/Tribunal per Award dated 13.6.2006 by one of my ld. Predecessors. Issue No.4 was framed

to the effect as to “Whether the reference is barred by time?” Such issue was decided against the

claimant/petitioner Shri Hari Singh. It was held that since the claim petition has been preferred by

the petitioner at a belated stage, the industrial dispute raised by him has become stale because of

which the reference is not maintainable. Consequently, the claim petition was dismissed and the

reference was answered against the workman/petitioner. Aggrieved by and dissatisfied with the

Award dated 13.6.2006 rendered by this Court, the petitioner Shri Hari Singh preferred CWP

No.4050 of 2009-H before the Hon’ble High Court of Himachal Pradesh, Shimla. Such CWP was

allowed by the Hon’ble High Court vide judgment dated 09.10.2012. While setting aside the Award

dated 13.6.2006 passed by this Court/Tribunal, it was observed by the Hon’ble High Court that “the

reference had to be answered by the Labour Court and the question of the reference having been

made belatedly could have been considered at the time of giving the relief”. Similar view has been

expressed by a Division Bench of our Hon’ble High Court in H.P. State Forest Corporation versus

Presiding Judge, Labour Court, Shimla and another, 2012 (133) FLR 684. Taking into account the

observations made in these rulings, it cannot be said that the petition is hit by the vice of delay

and laches.

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

Relief (issue No. 5)

30. As a sequel to my findings on the various issues above, the instant claim petition being

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

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31. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 1st day of July, 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. 384/2009

Date of Institution : 18.7.2009

Date of Decision : 03.07.2013

Shri Chaman Singh s/o Shri Udham Singh, r/o Village & P.O. Tikari, Tehsil Bhattiyat,

District Chamba, (H.P.)

..Petitioner.

Versus

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

..Respondent.

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

For the Petitioner :

Sh. Naresh Kaul, 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 of Sh. Chaman Singh S/O Shri Udham Singh by The

Executive Engineer, IPH Division Dalhousie, Distt. Chamba (H.P.) w.e.f. 09.11.2000 and

retaining the junior workmen, as alleged by worker, is proper and justified? If not, what

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

workman is entitled to?”

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

his services were engaged as a daily waged beldar in the month of August, 1996 by the respondent.

He worked as such up-to the year 2000 as well as completed 240 days of work in each and every

calendar year of his employment. To his utter surprise, a termination notice was received by him

and his companions. No reason was assigned for the termination of his services. The respondent

infact adopted the pick and choose policy and removed him (petitioner) from service due to the

political considerations. At the time of his retrenchment, the principle of ‘last come first go’ was

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not adhered to by the respondent. Even no permission was taken by the respondent to terminate his

services as envisaged under Section 25-N of the Industrial Disputes Act, 1947 (14 of 1947, ‘the

Act’ for short). The persons junior to him (petitioner) were retained in service by the respondent.

After his retrenchment, new/fresh hands have been employed by the respondent. Some of his

companions were also issued the termination notices by the respondent. They were, however,

retained in service. Their names are S/Sh. Rajinder Singh and Madhi Ram etc. The names of the

labourers who have been engaged after his termination are S/Sh. Pawan Singh and Chaman Singh

etc. From the date of his disengagement, he is unemployed. He visited the office of the respondent

time and again to re-engage his services, but in vain. He is entitled to the regularization after

completion of 10 years of service with all consequential benefits as per the trite laid down by the

Hon’ble Apex Court in Mool Raj Upadhaya’s case. He has been discriminated. The act and conduct

of the respondent is illegal and unjustified. It is also violative of Sections 25-F, 25-G, 25-H and 25-

N of the Act.

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

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

continuity in service and payment of the back wages etc. He also prays that the respondent be

directed to pay the interest @ 18% per annum on the amount of the back wages and the allowances

etc.

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 since no legal or fundamental right of the petitioner

has been infringed. The petition is hit by the vice of delay and laches. The provisions of Chapter

VB of the Act are not attracted in this case. The petitioner has misrepresented himself. He has

concealed the material facts from the Court. The petitioner is estopped by his act and conduct from

preferring the instant industrial dispute.

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

rated beldar. However, it has been pleaded that he was employed in the month of August, 1996. His

mandays chart is annexure R-I. Due to the shortage of the funds and the work in the Division, he

(respondent) was facing huge financial constraints. It became impossible to adjust all the daily

waged workers who were large in number. Due to less budgetary provision, the availability of the

work decreased. For this reason, the services of the petitioner and 363 other workmen were no

longer required by the department. It was decided to disengage the surplus workers in the absence

of the funds. The petitioner and 363 other workers were disengaged. At the time of the

retrenchment of the services of the petitioner w.e.f. 09.11.2000, the principle of ‘last come first go’

was strictly adhered to. One month notice and the compensation were duly given to the petitioner.

While disengaging the workmen, the seniority maintained at the Divisional level was strictly

followed. No person junior to the petitioner has been retained in service or re-engaged. No

new/fresh hands have been employed after the termination of the services of the petitioner. The

present dispute has been raised by the petitioner after seven years of his retrenchment. The

petitioner is gainfully employed as an agriculturist after the termination of his services. None of the

similarly situated workman has been re-employed. The workmen, whose names have been

disclosed by the petitioner, are either senior to him or belong to the other category. Some of the

workmen have been employed on compassionate grounds. Shri Raj Kumar s/o Shri Kiru Ram is not

on his (respondent’s) rolls. No provision of the Act has been flouted. The petitioner is not entitled

to the regularization of his services or any other relief as claimed.

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

costs.

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

claim and refuted the objections put forth by the respondent.

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5. Per order dated 02.6.2012, following issues were struck:

1. Whether the termination of the services of the petitioner by the respondent 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 on account of delay and laches on the part of the

petitioner?

..OPR.

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

..OPR.

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

conduct as alleged?

..OPR.

6. Relief.

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

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

Issue No. 1 : Yes

Issue No. 2 : Not pressed

Issue No. 3 : No

Issue No. 4 : Not pressed

Issue No. 5 : Not pressed

Relief.

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

REASONS FOR FINDINGS

Issue No. 1

8. Shri Chaman Singh (petitioner) stepped into the witness box as PW1. In his affidavit

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

petition/statement of claim in its entirety.

In the cross-examination, he stated that he does not know that in the month of October/

November, 2000, the availability of budget and work in the Dalhousie Division was reduced. He

admitted that due to these reasons the services of 363 workmen were disengaged by the respondent.

Self stated, the work continued and it was got executed through the contractors. He admitted that

the notice (Ex.R-2) was given to him by the respondent. Volunteered, the notice had come which

he refused to receive. He feigned ignorance about the counter foil (Ex. R-3). Self stated, the

compensation was not received by him. He admitted that Smt. Sodha Devi and Smt. Lata Devi

were employed on compassionate grounds after the death of their husbands. He is not aware of the

fact that S/Sh. Hem Raj and Brij Lal etc. have been re-engaged as per the orders of the Court. He

denied that no person junior to him is serving the respondent/department. He refuted that he is not

entitled to the re-employment etc.

9. Conversely, Shri L.S. Thakur, Executive Engineer, I&PH Division, Dalhousie

(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.

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In the cross-examination, he admitted that Smt. Biasa Devi and Shri Hem Raj have been re-

employed. Volunteered, their services have been reengaged as per the orders of the Court. When

both the above named workers were re-engaged, a notice of re-employment was not given to the

petitioner. He denied that the services of the petitioner were disengaged in a wrongful manner. He

admitted that when the services of the petitioner were terminated, the scheme of the department

was in progress and the work was available. Self stated, the budget was not there.

10. Ex. R-1 is the mandays chart relating to the petitioner.

11. Ext. R-2 is the copy of notice dated 06.10.2000 served upon the petitioner by the

respondent under Section 25-F of the Act. Ex. R-2 depicts that the services of the petitioner were

disengaged w.e.f. 09.11.2000 (afternoon) due to the non-availability of the work and the funds.

12. Ex. R-3 is the copy of counter foil of the cheque dated 06.10.2000 worth Rs.3060/-

issued in favour of the petitioner by the respondent towards the retrenchment compensation.

13. Ex. RW1/B is the list/detail of the workers who have been mentioned as junior to the

petitioner in the claim petition.

14. Ex. RW1/C is the copy of the order dated August 21, 2012 pronounced by the Hon’ble

High Court of Himachal Pradesh in CWP No.11042/2011-E titled as The State of Himachal

Pradesh through Secretary (IPH) to the Government of H.P. and another versus Sh. Santosh Kumar

and another. It unfolds that the operation of the Award passed by this Court was stayed subject

to certain conditions.

15. Ex. RW1/D is the seniority list of the daily waged staff who remained on rolls up-to

31.12.2000 in the office of the respondent.

16. Exts. RW1/E to K are the mandays charts relating to Shri Paras Ram and others.

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

a daily waged beldar. The mandays chart Ex. R-1 produced by the respondent is not in dispute. Its

perusal discloses that the services of the petitioner were initially engaged in the month of August,

1996 by the respondent.

18. It is an admitted fact that the services of the petitioner were terminated by the

respondent with effect from 09.11.2000 (afternoon) after issuing the notice Ex. R-2. The version of

the respondent is that the services of the petitioner and 363 other similarly situated workmen were

disengaged due to the non-availability of the work and the funds being surplus. As already

mentioned, Ex. RW1/D is the seniority list of the daily waged beldars who remained on rolls of the

respondent up-to 31.12.2k. The name of the petitioner figures at serial No.174 of the list.

19. Ex. RW1/J i.e. the seniority list of beldar category relating to Shri Angrej Singh and

two others reveals that Smt. Sodha Devi was appointed by the respondent in the year 1999,

whereas, the services of Smt. Lata Devi were engaged in the year 2000. Of course, a note has been

given on Ex. RW1/J that both these ladies were appointed on compassionate grounds. The dates of

deaths of their husbands namely S/Sh. Ashok Kumar and Tarbeej Singh have not come on the file.

Admittedly, Smt. Sodha Devi and Smt. Lata Devi are still serving the respondent/department and

their services were engaged after the engagement of the services of the petitioner. The dates of

engagement of Smt. Sodha Devi and Smt. Lata Devi are 19.11.1999 and 01.5.2000 respectively. At

the cost of reiteration, I will like to add that the month of initial appointment of the petitioner as per

Ex. R1 is August, 1996. There is nothing on the record to show that the deceased husbands of Smt.

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Sodha Devi and Smt. Lata Devi were senior to the petitioner. This indicates that the persons junior

to the petitioner are still serving the respondent/department. The latter has failed to adhere to the

principle of ‘last come first go’. Retaining the juniors at the cost of the senior is nothing but unfair

labour practice.

20. Not only this, Shri L.S. Thakur (RW1) in his cross-examination admitted that Smt.

Biasa Devi and Shri Hem Raj have been re-engaged. The names of these two workmen figure at

serial No. 91 and 112 of the seniority list Ex. RW1/D. Shri Hem Raj and Smt. Biasa Devi are/were

associates of the petitioner whose name is at serial No. 174 of Ex. RW1/D.

21. There is no denial of the fact that Reference No.570/2008 titled as Mohinder Kumar

versus The Executive Engineer, I&PH Division, Dalhousie was decided by this Court/Tribunal on

01.11.2012. While deciding the said reference, it was held by this Court that after 26.11.2000

new/fresh hands were engaged by the respondent. If the services of the petitioner were disengaged

being surplus (as alleged by the respondent), then why new/fresh hands were employed? The

reasons to that effect being obscure go to show that the respondent is not speaking the truth. There

is nothing on the file to establish that at the time of engaging new/fresh hands, an opportunity of re-

employment was afforded to the petitioner.

22. Such being the situation, I have no hesitation to conclude that the respondent has

contravened the provisions of Sections 25-G and 25-H of the Act. The termination of the services

of the petitioner is illegal and unjustified.

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

Issue No. 3

24. Reference No. 41/2001 (RBT No.403/04) titled as Sh. Hari Singh vs. The Secretary,