jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
f”keyk] eaxyokj] 18 ekpZ] 2014@27 QkYxqu] 1935
fgekpy izns'k ljdkj
fgekpy izns'k fo/kku lHkk lfpoky;
vf/klwpuk
f'keyk&4] fnukad --------------
la[;k% fo0l0@LFkk0@lsok0fu0@6&30@80-&&v/;{k egksn;] fgekpy izns'k fo/kku lHkk lg"kZ
vkns'k nsrs gSa fd Jherh oS'kkyh Bkdqj] eq[; izfrosnd fnukad 31&08&2014 ¼vijkའdks lsokfuo`fÙk dh
vk;q iw.kZ gksus ij ,Q-vkj-&56 ds micU/kksa ds vUrxZr lsokfuo`Ùk gksaxhA
lqUnj flag oekZ]
lfpo]
fg- iz- fo/kku lHkkA
269&jkti=@2014&18&3&2014 ¼7409½
7410
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
fgekpy izns'k fo/kku lHkk lfpoky;
vf/klwpuk
f'keyk&4] fnukad -------------------
la[;k% fo0l0@LFkk0@lsok0fu0@6&30@80-&& v/;{k egksn;] fgekpy izns'k fo/kku lHkk lg"kZ
vkns'k nsrs gSa fd Jh pUnz izdk'k usxh] vuqHkkx vf/kdkjh fnukad 31&07&2014 ¼vijkའdks lsokfuo`fÙk dh
vk;q iw.kZ gksus ij ,Q-vkj-&56 ds micU/kksa ds vUrxZr lsokfuo`Ùk gksaxsA
lqUnj flag oekZ]
lfpo]
fg- iz- fo/kku lHkkA
&&&&&&&&
LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Shimla-2, 22nd March, 2014
No. Sharm (A) 7-1/2005 (Awards) 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
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
1.
40/2013
S/Shri Hans Raj V/s D.F.O. Salooni.
03-01-2014
2.
193/2013
Om Prakesh V/s E.E. HPPWD, J/Nagar.
08-01-2014
3.
206/2013
Ram Singh V/S
-do-
08-01-2014
4.
199/2013
Hoshiyar Singh V/S
-do-
08-01-2014
5.
208/2013
Ramesh Chand V/s
-do-
08-01-2014
6.
200/2013
Dhmnu Ram V/s
-do-
08-01-2014
7.
186/2013
Drumku Devi V/s
-do-
08-01-2014
8.
205/2013
Besar Singh V/s
-do-
08-01-2014
9.
191/2013
Meena Devi V/s
-do-
08-01-2014
10.
196/2013
Labh Singh V/s
-do-
08-01-2014
11.
07/2013
Jai Gopal V/s E.E. I&PH Kullu
08-01-2014
12.
136/2013
Vikas Singh V/s President, PTA G.H.
09-01-2014
13.
124/2013
Sant Ram V/s E.E. HPPWD, J/Nagar
09-01-2014
14.
325/2012
Nirmla Devi V/s
-do-
09-01-2014
15.
126/2013
Pyaro Devi V/s
-do-
09-01-2014
16.
123/2013
Dev Raj V/s
-do-
09-01-2014
17.
123/2011
Bableet Kumar V/s M.D. Creast Steel & Power
10-01-2014
18.
182/2013
Sanjeev Kumar V/s E.O.M.C. Sh. Naina Devi.
14-01-2014
7411
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
19.
138/2013
Ajeet Singh V/s D.F.O. Hamirpur.
14-01-2014
20.
01/2011
Rita Sharma V/S Chairman, Sushil Pundir
14-01-2014
21.
400/2009
Ravi Dutt V/s E.E. I&PH, Dalhousie
21-01-2014
22.
30/2013
Savitri Devi V/s E.E. HPPWD, Dharampur
22-01-2014
23.
29/2013
Soma Devi V/s
-do-
22-01-2014
24.
31/2013
Neela Devi V/s
-do-
22-01-2014
25.
28/2013
Neela Devi V/s
-do-
22-01-2014
26.
58/2013
Raj Kumar V/s Management/Employer Vamsi
22-01-2014
By order,
R.D. DHIMAN,
Pr. Secretary (Labour & Employment).
__________
IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA , H.P.
Ref.: No. : 200/2013
Sh. Dumnu Ram s/o Shri Didia Ram, r/o Village Dhurali, P.O. Langna, Tehsil Joginder
Nagar, Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present : None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A. for the respondent.
Statement of claim/demand not filed. The claimant/petitioner was personally present in the
Court on the last date of hearing. He has not turned up today despite knowledge. The case has been
called out repeatedly at intervals before and after the lunch. It is already 3.30 P.M.
2.
The above noted facts amply demonstrate that the petitioner (Sh. Dumnu Ram) is
not interested to pursue the matter. Since the petitioner has failed to file any statement of
claim/demand, it can be safely said that he is not entitled to any relief. For want of statement of
claim/demand, it is held that no artificial/fictional break in service was provided to the petitioner by
the respondent during the course of employment (as per the reference) as alleged.
3.
Ordered accordingly. Parties to bear their own costs.
4.
The reference is answered in the aforesaid terms.
5.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
6.
Be consigned to the Records after due completion.
7412
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
Announced:
(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. : 208/2013
Sh. Ramesh Chand s/o Sh. Jonki Ram, r/o Village & P.O. Langna, Tehsil Joginder Nagar,
Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A. for the respondent.
Statement of claim/demand not filed. The claimant/petitioner was
personally present in the Court on the last date of hearing. He has not turned up
today despite knowledge. The case has been called out repeatedly at intervals before
and after the lunch. It is already 3.30 p.m.
2.
The above noted facts amply demonstrate that the petitioner (Sh. Ramesh Chand) is
not interested to pursue the matter. Since the petitioner has failed to file any statement of
claim/demand, it can be safely said that he is not entitled to any relief. For want of statement of
claim/demand, it is held that no artificial/fictional break in service was provided to the petitioner by
the respondent during the course of employment (as per the reference) as alleged.
3.
Ordered accordingly. Parties to bear their own costs.
4.
The reference is answered in the aforesaid terms.
5.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
6.
Be consigned to the Records after due completion.
Announced:
(RAJAN GUPTA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
7413
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref.: No. : 206/2013
Sh. Ram Singh s/o Shri Sai Ram, r/o Village Salahan, P.O. Khaddar, Tehsil Joginder Nagar,
Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A. for the respondent.
The claimant/petitioner Sh. Ram Singh is absent despite personal service. He was also
served personally for the last date of hearing i.e. 13-12-2013, but did not attend the Court. The
summons sent for the service of the petitioner for 13-12-2013 were in-fact received in the Court
duly served on 16-12-2013 i.e. after the expiry of the due date. Today, the case has been called out
repeatedly at intervals before and after the lunch. It is already 3.00 p.m. The petitioner has not
come present despite knowledge.
2.
The above noted facts amply demonstrate that the petitioner (Sh. Ram Singh) is not
interested to pursue the matter. Consequently, he is not entitled to any relief. For want of statement
of claim/demand, it is held that no intentional breaks in service were provided to the petitioner by
the respondent during the course of employment (as per the reference) as alleged.
3.
Ordered accordingly. Parties to bear their own costs.
4.
The reference is answered in the aforesaid terms.
5.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
6.
Be consigned to the Records after due completion.
Announced:
(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. : 193/2013
Sh. Om Prakash s/o Shri Todar Ram, r/o Village Banoh, P.O. Panjalag, Tehsil Joginder
Nagar, Distt. Mandi, H.P.
..Petitioner.
7414
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A. for the respondent.
The claimant/petitioner Sh. Om Prakash is absent despite personal service. He was also
served personally for the last date of hearing i.e. 13-12-2013, but did not attend the Court. The
summons sent for the service of the petitioner for 13-12-2013 were in-fact received in the Court
duly served on 16-12-2013 i.e. after the expiry of the due date. Today, the case has been called out
repeatedly at intervals before and after the lunch. It is already 3.00 p.m. The petitioner has not
come present despite knowledge.
2.
The above noted facts amply demonstrate that the petitioner (Sh. Om Prakash) is not
interested to pursue the matter. Consequently, he is not entitled to any relief. For want of statement
of claim/demand, it is held that no intentional breaks in service were provided to the petitioner by
the respondent during the course of employment (as per the reference) as alleged.
3.
Ordered accordingly. Parties to bear their own costs.
4.
The reference is answered in the aforesaid terms.
5.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
6.
Be consigned to the Records after due completion.
Announced:
(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. : 199/2013
Shri Hoshiyar Singh s/o Sh. Moji Ram, r/o Village Patt, P.O. Dull, Tehsil Joginder Nagar,
Distt. Mandi, H.P.
..Petitioner.
Versus
Executive Engineer, B & R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: Petitioner in person.
7415
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
Sh. Bhuvnesh Awasthi, D.D.A for the respondent.
The petitioner/claimant has made the below given statement in the Court today:-
“esjk nwljk eqdnek Ref. No. 185/13 blh vnkyr esa fopkjk/khu gS] ftl dkj.k eSa ;g eqdnek
;kfu Ref. No. 199/13 u pykuk pkgrk gWwaA nkf[ky nQ~rj fd;k tkosA
RO & AC
P.J.”
Sd/-
08-01-14
2.
Ordered accordingly. Parties to bear their own costs.
3.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
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. : 07/2013
Shri Jai Gopal s/o Late Sh. Arjun Singh, Village Kalhali, P.O. Bajaura, Tehsil & Distt.
Kullu, H.P. at present residing at Village Devdhar, P.O. Talyahar, Tehsil & Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, IPH Division Kullu, Distt. Kullu, H.P.
..Respondent.
08-01-2014.—Present: Petitioner in person.
Sh. Bhuvnesh Awasthi, D.D.A for the respondent.
Rejoinder filed. At this stage, the claimant/petitioner Sh. Jai Gopal has made the below
given statement in the Court today:-
“eSa ;g eqdnek u pykuk pkgrk gawA nkf[ky nQ~rj fd;k tkosA
RO & AC
P.J.”
Sd/-
08-01-14
7416
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
2.
Ordered accordingly. Parties to bear their own costs.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
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. : 186/2013
Smt. Drumku Devi w/o Shri Pyare Lal, r/o Village & P.O. Drahal, Tehsil Joginder Nagar,
District Mandi, H.P.
..Petitioner.
Versus
Executive Engineer, B & R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A for the respondent.
Ld. D.D.A. for the respondent states at bar that since the claimant/petitioner has failed to
file any statement of claim/demand, he does not want to file any reply. Ld. D.D.A also states at bar
that no fictional breaks in service were provided to the petitioner as alleged.
2.
The perusal of the file discloses that Smt. Drumku Devi (petitioner) was personally
served in this case for 13-12-2013. She did not appear in the Court on that date. Up-till now, no
statement of claim/demand has been preferred by the petitioner/workman.
3.
Such being the situation, I have no hesitation to conclude that no artificial/
intentional break in service was provided to the petitioner by the respondent during the period of
her employment (as per the reference) as alleged.
4.
Parties to bear their own costs.
5.
The reference is answered in the aforesaid terms.
6.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
7417
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
7.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
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. : 191/2013
Smt. Meena Devi w/o Shri Devi Singh, r/o Village Thana Ropru, P.O. Drubbal, Tehsil
Joginder Nagar, District Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A for the respondent.
Ld. D.D.A. for the respondent states at bar that since the claimant/petitioner has failed to
file any statement of claim/demand. he does not want to file any reply. Ld. D.D.A also states at bar
that no fictional breaks in service were provided to the petitioner as alleged.
2.
The perusal of the file discloses that Smt. Meena Devi (petitioner) was personally
served in this case for 13-12-2013. She did not appear in the Court on that date. Up-till now, no
statement of claim/demand has been preferred by the petitioner/workman.
3.
Such being the situation, I have no hesitation to conclude that no artificial/
intentional break in service was provided to the petitioner by the respondent during the period of
her employment (as per the reference) as alleged.
4.
Parties to bear their own costs.
5.
The reference is answered in the aforesaid terms.
6.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
7.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
7418
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref.: No. : 196/2013
Sh. Labh Singh s/o Shri Kundan Lal, r/o Village Makrori, Tehsil Joginder Nagar, District
Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, B & R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
08-01-2014.—Present: None for the petitioner.
Sh. Bhuvnesh Awasthi, D.D.A for the respondent.
Ld. D.D.A. for the respondent states at bar that since the claimant/petitioner has failed to
file any statement of claim/demand, he does not want to file any reply. Ld. D.D.A also states at bar
that no fictional breaks in service were provided to the petitioner as alleged.
2.
The perusal of the file discloses that Sh. Labh Singh (petitioner) was personally
served in this case for 13-12-2013. He did not appear in the Court on that date. Up-till now, no
statement of claim/demand has been preferred by the petitioner/workman.
3.
Such being the situation, I have no hesitation to conclude that no artificial/
intentional break in service was provided to the petitioner by the respondent during the period of
his employment (as per the reference) as alleged.
4.
Parties to bear their own costs.
5.
The reference is answered in the aforesaid terms.
6.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
7.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
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. : 136/2013
Shri Vikas Singh s/o Late Shri Subhash Chand, r/o Village & P.O. Tiara, Tehsil and District
Kangra, H.P.
..Petitioner.
Versus
7419
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
The President, Parent Teachers Association, Government Senior Secondary School, Tiara,
Tehsil & District Kangra, H.P.
..Respondent.
09-01-2014.—Present: Petitioner with Sh. Pankaj Satwalia, Adv. vice csl.
Sh. Swaroop Singh, Pradhan, P.T.A (respondent) in person.
Statement of claim/demand not filed by the petitioner. He (claimant/petitioner) has made
the below given statement in the Court today:-
“eSa ;g dsl u pykuk pkgrk gw¡A nkf[ky nQ~rj fd;k tkosA
eSa vktdy fdlh vkSj txg ij ukSdjh djrk gw¡A
RO & AC
P.J.”
Sd/-
09-01-14
2.
Ordered accordingly. Parties to bear their own costs.
3.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
File after due completion be consigned to the Records.
(RAJAN GUPTA)
Announced:
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. : 182/2013
Shri Sanjeev Kumar s/o Shri Ram Krishan, through Shri B.S. Verma, Vice President H.P.
State Committee, INTUC, Bilaspur, District Bilaspur, H.P.
..Petitioner.
Versus
The Executive Officer, Municipal Council, Shri Naina Deviji, District Bilaspur, H.P.
..Respondent.
14-01-2014.—Present: Petitioner (Sh. Sanjeev Kumar) in person.
Sh. Parkash Chand Sharma, Executive Officer, Shri Naina Deviji, (respondent) in person.
Statement of claim/demand not filed by the claimant/petitioner. Instead, he has made the
below given statement in the Court today:-
“eSa ;g eqdnek u pykuk pkgrk gWw A nkf[ky nQ~rj fd;k tkosA
7420
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
eq>s izfroknh us ukSdjh ls dHkh u fudkyk A
RO & AC
P.J.”
Sd/-
14-01-14
2.
Ordered accordingly. Parties to bear their own costs.
3.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
File after due completion be consigned to the Records.
(RAJAN GUPTA)
Announced:
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. : 138/2013
Sh. Ajeet Singh s/o Shri Sukhram, r/o Village Lodar, P.O. Ropri, Tehsil Badsar, District
Hamirpur, H.P.
..Petitioner.
Versus
The Divisional Forest Officer, Hamirpur Forest Division, Hamirpur, District Hamirpur, H.P.
..Respondent.
14-01-2014.—Present: Petitioner with Sh. S.S. Sippy, A.R.
Sh. Anil Joshi, D.F.O., Hamirpur (respondent) with Sh. Bhuvnesh Awasthi, D.D.A.
Rejoinder not filed. The parties have compromised. Their statements recorded separately.
The same are reproduced below verbatim for ready reference:-
“C;ku Jh vfuy tks'kh] vk;q 48 o"kZ] Divisional Forest Officer, gehjiqj] ftyk gehjiqj] fg0iz0
On.
S.A.
14-01-2014
Okknh vthr flag gekjs ikl ukSdjh ij o"kZ 2006 esa yxk Fkk A tSlk fd mlds Mandays chart esa
n'kkZ;k x;k gS A oknh dks ekSleh dke ds fy, ctV o dke dh miyC/krk vuqlkj le;≤ ij dke
ij j[kk tkrk Fkk A mls geus ukSdjh ls dHkh u fudkyk A ge oknh dh ofj"Brk dks ns[krs gq, mls igys
dh rjg gh ekSleh dkeksa ds fy, j[kus dks rS;kj gS A dke oknh dks ctV o dke dh miyC/krk vuqlkj
vk/kkj jsat ;k mlds utnhd okyh jsatsat esa nsrs jgsaxsA tc Hkh dke miyC/k gksxk ge oknh dks fyf[kr
uksfVl }kjk lwfpr djsaxs rkfd og ulZjh vkfn esa duty join dj ldsA
7421
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
RO & AC
P.J.
Sd/-
14-01-14
C;ku oknh vthr flag s/o Jh lq[k jke vk;q 36 o"kZ] R/O xkao yksMj Mk0 jksiM+h rglhy cM+lj
ftyk gejhiqj fg0iz0A
On. S.A.
14-01-2014
mijksDr C;ku Jh vfuy tks'kh ¼izfroknh½ lqu fy;k gS blls lger gw¡A eSa tc Hkh izfroknh eq>s
dke ij vkus ds fy, uksfVl nsxk mls izkIr d:axk vkSj fuf'pr frfFk ij duty ij report d:axk A ;g
eqdnek u pykuk pkgrk gw¡A le>kSrk gks x;k gSA eqdnek nkf[ky nQ~rj fd;k tkosA
RO & AC
P.J.”
Sd/-
14-01-14
Ref: 138/13
14-01-2014
2.
Ordered accordingly. Parties to bear their own costs.
3.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
Be consigned to the Records after due completion.
Announced:
(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. : 01/2011
1.
Smt. Rita Sharma w/o Shri Rattan Lal, r/o Village Soldha, Tehsil Sadar, Distt.
Bilaspur, H.P.
2.
Shri B.S. Verma, Vice President, INTUC H.P. State Near Water Tank, Kosarian
Sector, Distt. Bilaspur, H.P.
..Petitioner(s).
Versus
1.
The Chairman, Sh. Sushil Pundir, SDMC, Mid Day Meal Committee, Sr. Sec.
School Soldha, Distt. Bilaspur, H.P.
7422
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
2.
Sh. Shashi Verma s/o Sh. Ganga Ram, r/o Village Soldha, PTA Pradhan &Member
SDMC, Sr. Sec. School Soldha, Distt. Bilaspur, H.P.
3.
Sh. Sant Ram Kondal, President, Gram Panchayat, Soldha, Member SDMC, Sr. Sec.
School, Soldha, Distt. Bilaspur, H.P.
..Respondent(s).
14-01-2014.—Present: Petitioner (Smt. Rita Sharma) in person.
Sh. S.S. Sippy, A.R. for the petitioner.
Sh. Sushil Pundir (respondent No. 1) in person.
Sh. Sant Ram Kondal (respondent No. 3) with Sh. Virender Thakur, Adv.
Previous costs of Rs. 1000/- paid and accepted. The respondent No. 1 and the ld. csl. for the
respondent No. 3 have given separate statements to the effect that since the issue involved is of
legal nature, they do not want to cross-examine Smt. Rita Sharma (PW-1) and lead any evidence.
2.
At this stage, ld. Authorised Representative for the claimant/petitioner has made the
below given statement in the Court :-
“bl U;k;ky; ds vkns'k/Award fnukad 20-05-2013 vuqlkj okfnuh Jherh jhrk 'kekZ dks
izfrokfnx.k us nksckjk o"kZ] 2013 esa lksy/kk Ldwy esa crkSj Mid–
day meal worker dke ij j[k fy;k FkkA okfnuh us nks efgus Ldwy esa dke fd;k ftldh mls
ru[okg nh xbZA mlds ckn nksckjk Ldwy izcU/kdksa us okfnuh dks o"kZ 2013 esa ukSdjh ls fudky
fn;kA o"kZ 2013 esa ukSdjh ls fudkyus ckjk okfnuh u;k demand notice izfroknhx.k dks tkjh
djsxh] D;ksafd 03&12&2009 dks ukSdjh ls fudkyus ckjk reference/claim infructuous gks pqdk
gSA eSa ;g dsl u pykuk pkgrk gw¡ A nkf[ky nQ~rj fd;k tkosA
RO & AC
P.J.”
Sd/-
14-01-14
3.
Ordered accordingly. Parties to bear their own costs.
4.
The reference is answered in the aforesaid terms.
14-01-2014
Ref: No. 01/2011
5.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
6.
File after due completion be consigned to the Records.
(RAJAN GUPTA)
Announced:
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
7423
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref.: No. : 58/2013
Shri Raj Kumar s/o Shri Chanu Ram, r/o Village & P.O. Kathla, Tehsil Sinhuta, District
Chamba, H.P.
..Petitioner.
Versus
1.
The Management/Employer of Vamsi Industrial Power Ltd., Lanco Infratech Ltd.,
Drinidhar Project, Tehsil Shahpur, District Kangra, H.P. (Present Address)
2.
M/S Lanco Infratech Ltd., Plot No. 397, Udhyog Vihar, Phase-3, Gurgaon-122016,
Haryana. (Corporate Address).
..Respondents.
22-01-2014.—Present: Sh. Pradeep Kumar, Adv., csl. for the petitioner.
Sh. S.K. Nanda, Adv., vice csl. for the respondents.
Statement of claim/demand not filed by the petitioner despite the grant of last opportunity.
Instead, her/his ld. csl. has made the below given statement in the Court today:- “I do not want to
proceed with this reference/claim for the present. It be dismissed as withdrawn. My client will issue
a fresh demand notice to the respondent for the redressal of his/her grievances, if the need arises.
RO & AC
P.J.”
Sd/-
22-01-14
2.
Ordered accordingly. Parties to bear their own costs.
3.
The reference is answered in the aforesaid terms.
4.
A copy of this Order/Award be sent to the appropriate Government for further
necessary action at its end.
5.
File after due completion be consigned to the Record Room.
(RAJAN GUPTA)
Announced:
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.
: 123/2011
Date of Institution : 16.11.2011
Date of Decision
: 10.01.2014
7424
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
Shri Bableet Kumar s/o Shri Multan Singh, r/o VPO Kalruhi, Tehsil Amb, District Una,
H.P.
..Petitioner.
Versus
The Managing Director, M/S Crest Steel and Power Pvt. Ltd. VPO Kalruhi, Tehsil Amb,
Distt. Una, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. R.K. Singh Parmar, AR
For the Respondent : Sh. Onkar Singh, Adv.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Sh. Bableet Kumar S/O Sh. Multan Singh, VPO
Kalruhi, Tehsil Amb, Distt. Una, H.P. by the management of M/s Crest Steel and Power
Pvt. Ltd. VPO Kalruhi, Tehsil Amb, Distt. Una, H.P. w.e.f. 19.8.2010 without serving
charge-sheet, without holding enquiry and without following the provisions of the Industrial
Disputes Act, 1947 is legal and justified? If not, to what back wages, service benefits and
relief the above named worker is entitled to from the concerned management?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that his
services were engaged as a helper by the respondent/management on 01.11.2009. He continuously
worked as such up-to 18.9.2010 as well as completed 297 days of work. No complaint regarding
his work and conduct was received from 29.12.2009 to 18.9.2010. On 19th September, 2010, he
went to join his duty as usual. The gatekeeper told him (petitioner) that his entry in the factory
premises has been prohibited by the management. He made a number of attempts to re-join the
duty, but was not allowed to work on one pretext or the other. On 19.9.2010, his services were
infact terminated by the respondent illegally and arbitrarily. At the time of the disengagement of his
services he was drawing Rs.3,800/- per month as salary. Before the termination of his services,
neither any notice was given to him nor he was charge-sheeted. Even no inquiry was conducted
against him. At the time of his retrenchment, the persons junior to him were retained in service by
the respondent. The latter did not obtain any permission from the concerned authorities to remove
him (petitioner) from service. No retrenchment compensation was paid to him. A demand notice
was served upon the respondent by him. Conciliation proceedings were initiated by the Labour
Inspector, Amb, but in vain. After the termination of his services, he tried his level best to secure
the employment, but without any success. The act and conduct of the respondent is illegal and
unjustified. It is also violative of the provisions of Sections 25-F, 25-G and 25-N of the Industrial
Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
As such, he (petitioner) prays that the termination order passed by the respondent 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.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Paras 1 to 14 of the reply are reproduced below
verbatim for ready reference:
7425
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
“1. That para no.1 of the claim statement is wrong and incorrect. The applicant was
employed as helper in the company w.e.f. 1-11-2008 to 19-8-2010.
2. That para no.2 of the claim statement is wrong and incorrect. As a matter of fact the
applicant did not work honestly in the company and the behavior of the applicant was very
disrespectful, defiant and arrogant towards his colleagues and officers. The applicant used
to slow down the production by instigating his colleagues either to go on strike or to
misbehave with the superiors and officers. The details of incident as quoted as under:-
i.
That on 17-6-2009 the applicant assaulted the then Maintenance Manager Shri
Ashwani Sharma who order him to work honestly and not to slow down the
production, at this the applicant become furious and lost his temper and assaulted the
officer who got some injuries. When a show cause notice issued to the applicant
then he tendered his unconditional apology and undertake that he will not repeat this
type of behavior in future. The management after taking lenient view warned the
applicant and accepted his written apology and he was allow to continue the work.
ii.
Secondly on 23-3-2010 the applicant was on duty and was under the influence of
liquor and when he was checked by the then General Manager Marketing of the
company Shri Vagish Sharma, he repeated the same incident and used the filthy
language through mother and sister and when the management took cognizance,
again the applicant tendered his written apology and undertake that he will not
repeat this type of behavior in future and he further undertake that in future he will
repeat this type of behavior then his services shall be terminated automatically
without issuing show cause notice.
iii.
Thirdly on 17-6-2010 the applicant was on rest, but he entered the factory premises
when he was under the influence of liquor and entered in the office of R.P. Sharma
to provide TMT Bars for his neighborer on the whole sale rate and Shri R.P. Sharma
asked the applicant and his neighborer to sit and wait in the time office. At this the
applicant became furious and abused Mr. R.P. Sharma in filthy language through
mother and sister and when the matter was reported in higher authority, then the
applicant tendered his apology in the presence of employees and a final warning was
given to the applicant not to repeat this type of incident in future, otherwise the
services of the workmen will be terminated without further reference, but the
behavior of the applicant did not improved and he repeatedly involved in the same
incident.
iv.
That on 18-8-2010 at about 8:00 PM the workmen forcibly dragged and instigated
the workers who were on duty to go on strike outside the gate and he with the help
of his co-worker damaged the machinery installed in the plant and thereafter sat
outside the gate on strike and stopped the production work. The matter was reported
to the police and on the intervention of police, the worker then started the work of
production, but the behavior of the applicant did not improved and he continued in
abusing the management and threatened the management with dire consequences of
life.
v.
That on taking into account the disrespectful, defiant and repeated misbehavior of
the applicant, the management take a strict action and issue show cause notice to the
applicant and placed him under suspension and required him to file the reply. A
vague reply was given and inquiry was conducted and by taking into previous
conduct of the applicant, the services of the applicant were terminated and full and
7426
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
final payment through Demand Draft along with termination order was send to the
applicant, but the applicant refused to accept the same.
3. That para no. 3 of the claim statement is wrong and incorrect. Since the services of the
applicant were terminated w.e.f. August 2010.
4. That para no.4 of the claim statement is wrong and incorrect. Since the workmen was
terminated from his duty, so the question of taking him on duty does not arise at all.
5. That para no. 5 of the claim statement is wrong and incorrect. As a matter of fact by
taking into account all the repeated incidents and the worker was not making the production
to the satisfaction of the management and the management took serious action and close the
production in the month of May 2011.
6. That para no.6 of the claim statement is wrong and incorrect. The services of the
applicant were terminated in the month of August 2010 by giving him full and final
payment amount through Bank Draft, whereas he has not accepted and refused the
registered A.D.
7. That para no.7 of the claim statement is wrong and incorrect. A charge sheet was framed,
but the applicant did not opt to file the reply and present him in the office after suspension,
so the allegations to the contrary are wrong and incorrect.
8. That para no.8 of the claim statement is wrong and incorrect. The services of the
applicant were terminated after taking into previous conduct of the applicant and his proved
misbehavior and apologies as well as undertaking, the applicant did not improved his
behavior, rather the behavior of the applicant become more arrogant and disrespectful
towards management, he did not improve his misbehavior and used to take liquor while on
duty, since the behavior of the applicant was defiant and disrespectful towards his superiors
and bosses as such after exhausting all the remedies, the services of the applicant were
terminated. The other contents of this para are wrong and incorrect. Since the workmen was
disrespectful and defiant as such the Principal of first come last go was not applicable to
him. The whole contents of this para are wrong and incorrect.
9. That para no.9 of the claim statement is wrong and incorrect. The payment of notice
period was sent to him through Bank Draft, so the allegation to the contrary is wrong and
incorrect.
10. That para no.10 of the claim statement is wrong and incorrect. Since the services of
workmen were terminated, so the Principal of retrenchment was not applicable to him.
11. That para no.11 of the claim statement is wrong and incorrect. All the benefits were sent
to him through Bank Draft.
12. That para no.12 of the claim statement is wrong and incorrect. The workmen drawn the
last payment of Rs. 3,300/- as per the minimum wages Act.
13. That para no.13 of the claim statement is wrong and incorrect. No conciliation
proceedings were initiated by the labour officer as such the reference is bad in the eyes of
law.
14. That para no.14 of prayer clause of the claim statement is wrong and incorrect. The
workmen has been given full opportunity and taking into account his previous conduct and
7427
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
proved misbehavior the services of workmen were terminated inconsonance with law. The
statement of claim is false, frivolous, misconceived and is a bundle of lies, merits dismissal
and the termination order of workmen may please be upheld in the interest of justice”.
4.
In the rejoinder, the petitioner has reiterated the contents of the petition/statement of
claim and refuted the objections put forth by the respondent. It has been owned that he was
employed as a helper in the company on 01.11.2008 and worked up-to 19.8.2010 only. The
allegations of misconduct leveled against him are wrong and baseless. No suspension order was
issued and delivered to him. Neither he was charge-sheeted nor an inquiry was held against him.
No payment was sent to him (petitioner) by the respondent which he refused to accept. He was
hired and fired.
5.
Per order dated 02.07.2012, following issues were struck:
1.
Whether the services of the petitioner were terminated by the respondent wrongly
and illegally as alleged?
..OPP.
2.
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
Relief.
: Claim petition dismissed vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8.
Shri Bableet Kumar (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 Shri Ashok Kumar is his real brother. Shri Ashok
Kumar was also serving the respondent and was the Pradhan of the workers union. A verbal duel
had taken place between him (PW1) and the Factory Manager, where after, the matter was reported
to the police. He denied that he quarreled with the Factory Manager and thereafter, tendered the
written apology dated 23.3.2010, the copy of which is Mark-A. He denied that the original of
Mark-A was retained by the police. He feigned ignorance about the fact that Mark-A bears the
signatures of his brother Shri Ashok Kumar as well. He denied that on 17.6.2009, he quarreled with
Shri Ashwani Sharma (Maintenance Manager). Self stated, a spat had taken place between him and
Shri Ashwani Sharma. Letter of apology Ex. R1 (regarding the incident dated 17.6.2009) has not
been written by him (PW1). He admitted that Ex. R1 bears his signatures. He denied that the
application Mark-B has been written and signed by him. Demand notice Ex. R2 was signed by him
(PW1). Letter Ex. R3 bears his signatures. His name and address is written on the envelop Ex. R4.
He denied that he used to create ruckus in an inebriated condition in the factory premises. Mark-X
(later on exhibited as Ex. RW6/A) and Mark-Y bear his signatures. He does not know the contents
of these documents. He admitted that on 23.3.2010, he was on duty. He denied that on that day
after consuming the alcohol, he quarreled with Shri Vagesh Sharma, General Manager. He also
denied that on 17.6.2010 after consuming the liquor, he entered the factory premises. He refuted
7428
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
that he is a quarrelsome person and used to beg pardon time and again for his faults. He denied that
his services were terminated by the respondent taking into account his act and conduct. He also
denied that the bank draft of full and final payment was forwarded to him by the respondent under
registered cover which he refused to receive. He denied that to harass his opponent, he has
instituted a phoney petition.
9.
Conversely, Shri Ashwani Kumar, Senior Manager of the respondent testified as
RW3. In his affidavit Ex. RW3/A preferred as per Order 18 Rule 4 CPC, he corroborated on oath
the contents of the reply filed by the respondent.
In the cross-examination, he stated that he did not lodge any report regarding the
misbehavior done by the petitioner on 17.6.2009 as the workman/petitioner had begged the pardon
per letter Ex. R1. A written report Ex. RW3/B was made against the petitioner when he came to the
factory premises in a drunken condition on 18.8.2010. He is not aware of the fact as to whether the
petitioner was charge-sheeted or not. No domestic inquiry was conducted against the petitioner
before the termination of his services.
10.
Shri Surinder Kumar (RW4) is the General Manager (Finance) of the respondent. In
his affidavit Ex. RW4/A, he supported the version of the respondent. He also produced the salary
certificate Ex. RW4/B relating to the petitioner.
In the cross-examination, he denied that the services of the petitioner were disengaged
unlawfully.
11.
Shri Sanjeev Agnihotri (RW5) remained posted as Manager (HR) in the respondent
company. He lent credence to the version of the respondent. Ex. RW5/A is the affidavit filed by
him as per Order 18 Rule 4 CPC. He also stated that a show cause notice was issued to the
petitioner by him (RW5) in the month of August, 2010. Its copy is Mark-X (subsequently exhibited
as Ex. RW6/A). The petitioner refused to receive the said notice.
In the cross-examination, he admitted that the services of the petitioner were terminated by
them.
12.
Shri Anayat Ali (RW6) deposed that report Ex. RW3/B was lodged by him with the
General Manager of the company. The petitioner refused the receipt of the show cause notice Ex.
RW6/A because of which it was pasted in the notice board of the company. The petitioner used to
instigate the other workers and come to the factory premises in a drunken state. Twice or thrice, the
petitioner begged the pardon.
In the cross-examination, he denied that being an employee of the company, he is telling the
lies.
13.
Head Constable Puran Bhagat Singh (RW1) is M.H.C. Police Station, Amb, District
Una. He brought the requisitioned record and proved Ex. RW1/A i.e. the copy of G.D. Entry No. 23
(A), dated 19.8.2010. This rapat was entered against the petitioner on the basis of the complaint
made by the respondent.
In the cross-examination, he stated that he is not aware of the fact as to whether the
petitioner was subjected to the medical examination or not? Only the Investigating Officer can
divulge the said fact.
14.
RW2 is Shri Dil Mohamamd, Postman Kalruhi Branch, Tehsil Amb. He stated that
he visited the house of the petitioner time and again to deliver the registered letter. The
7429
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
petitioner/addressee did not meet him because of which the registered letter was returned
undelivered. Report Ex. RW2/A dated 04.9.2010 in this regard was made by him (RW2).
15.
It is the admitted case of the parties that the services of the petitioner were engaged
as a helper on 01.11.2008 and he worked as such up-to 18/19 August, 2010. In para 9 of the claim
petition, the petitioner has pleaded that he continuously worked for 297 days. The said fact has
been denied by the respondent. There is no denial of the fact that the services of the petitioner were
terminated by the respondent as a measure of punishment on 19.8.2010. There is nothing on the
record to show that before the retrenchment of the services of the petitioner, he was charge-sheeted
by the respondent or an inquiry for the misconduct(s) was conducted against him.
16.
The petitioner has not disclosed the name of any person junior to him who was
retained in service by the respondent at the time of the termination of the services of the petitioner.
Not only this, the petitioner has not divulged the name of any person who was employed by the
respondent after the termination in question. Thus, the provisions of Sections 25-G and 25-H of the
Act are not attracted in this case.
17.
It is well known that a duty is cast upon the workman to show that he had completed
240 days of work in a block of 12 calendar months preceding the date of his termination as
envisaged under Section 25-B of the Act. This fact has neither been pleaded nor proved by the
petitioner/workman. His mandays chart is not there on the file. For these reasons, it can be safely
said that the respondent has not flouted the provisions of Section 25-F of the Act.
18.
Ld. Authorized Representative for the petitioner is unable to show me as to how the
provisions of Section 25-N of the Act have been contravened by the respondent.
19.
Such being the situation, I have no hesitation to conclude that the respondent has not
violated any provision of the Act. The disengagement of the services of the petitioner by the
respondent is neither illegal nor unjustified. It appears to me that the avarice of the petitioner to
grab the job and money has forced him to prefer a totally false and baseless claim. He is not entitled
to any relief.
20.
This issue is decided against the petitioner and in favour of the respondent.
RELIEF (ISSUE NO. 2)
21.
Taking into account my findings on issue No. 1 above, the instant claim petition
being meritless, not maintainable and malafide fails. It is, therefore, dismissed. Parties to bear their
own costs.
22.
The reference is answered in the aforesaid terms.
23.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
24.
File after due completion be consigned to the Record Room.
Announced in the open Court today this 10th day of January, 2014.
(RAJAN GUPTA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
7430
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
IN THE COURT OF RAJAN GUPTA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref. No.
: 123/2013
Date of Institution : 24.08.2013
Date of Decision
: 09.01.2014
Shri Dev Raj s/o Shri Surjan Singh, r/o Village Outpur, P.O. Outpur, Tehsil Joginder Nagar,
Distt. Mandi, H.P.
..Petitioner.
Versus
Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Suresh Sharma, Adv.
For the Respondent : Sh. Soham Kaushal, ADA
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Dev Raj S/O Shri Surjan Singh,
R/O Village Outpur, P.O. Outpur, Tehsil Joginder Nagar, District Mandi, H.P. w.e.f.
06.03.1999 to 31.08.2007 by the Executive Engineer, B&R Division H.P.P.W.D., Joginder
Nagar, District Mandi, H.P. without complying with the provisions of the Industrial
Disputes Act, 1947, 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 as a daily rated beldar on 06.3.1999 by the HPPWD in the National
Highway Division, Joginder Nagar. Later on, the workmen of the said Division including him
(petitioner) were put under the control of the newly created HPPWD B&R Division, Joginder
Nagar. The new Division came into existence in the month of January, 2004. From the date of his
initial engagement up-to 31.8.2007, the respondent/department gave him the fictional breaks from
time to time. Muster roll for 15 days in a month used to be issued in his (petitioner’s) name despite
the fact that the work for the entire month was available with the respondent/department. The
persons junior to him (petitioner) working in the same category were allowed to complete 240 days
of work in a calendar year by the respondent/department. The names of the juniors are S/Sh. Dalip
Singh and Gautam Singh etc. The juniors have also been regularized. The respondent stopped
granting the artificial breaks to him (petitioner) w.e.f. 01.9.2007. After that, he was allowed to
complete 240 days of work in each and every calendar year of his employment. The fictional
breaks were given by the respondent arbitrarily. He has been discriminated. The work for which his
services were engaged is of permanent nature and is still continuing. From 06.03.1999 to
7431
jkti=] fgekpy izns'k] 18 ekpZ] 2014@27 QkYxqu] 1935
31.8.2007, he requested the respondent time and again to stop giving him the fictional breaks, but
in vain. During the break period, he remained without work and could not get the employment
anywhere else despite the best efforts. He is entitled to the seniority for the break period. This
Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as General
Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the workmen.
The act and conduct of the respondent is illegal and unjustified. It is also violative of Sections 25-F,
25-G, 25-H and other provisions of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for
short).
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:-
“the claim petition of the petitioner may kindly be allowed and he be given the benefit of
seniority for the period of fictional breaks alongwith back wages, he be regularized with
other consequential service benefits or any other relief, to which this Hon’ble Court deems
the petitioner fit under the facts and circumstances stated supra may also be granted in
favour of the petitioner and against the respondent HPPWD and the reference may kindly be
allowed in favour of the petitioner with cost in the interest of justice and justice be done”.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been taken to the
effect that the claim petition is not maintainable since no legal or fundamental right of the petitioner
has been infringed. The State of H.P. and the Executive Engineer, National Highway Division,
HPPWD, Joginder Nagar are necessary parties to the case. They have not been joined as parties to
the lis. The 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 by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar in the
month of March, 1999. His (respondent’s) office was created in the month of January, 2004 vide
notification dated 9th December, 2003 issued by the Government. The office started functioning
w.e.f. 2nd January, 2004. After creation of his (respondent’s) office, the petitioner and some other
workmen were transferred from the HPPWD, National Highway Division, Joginder Nagar to the
HPPWD (B&R) Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004 relates to
the office of the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar, who
has not been joined as a party to the case. No fictional breaks were provided to the petitioner as
alleged. The work was made available to the petitioner on his verbal requests from time to time as
per the availability of the funds and requirement. At the time of engaging the services of the
petitioner, he was duly informed that he has been engaged for a particular period of 10-15 or 20
days and his (respondent’s) office is not in a position to provide the work to him (petitioner) for the
whole month. The mandays chart of the petitioner is annexure R2. Almost all the workmen, whose
names have been disclosed by the petitioner, are senior to him. The petitioner has not been
discriminated. At the time of the disengagement of the workmen due to non availability of the work
and the funds, the principle of ‘last come first go’ was strictly followed. The petitioner is not
entitled to any protection under the Act. Now he is working continuously with him (respondent).
The instant industrial dispute has been raised by the petitioner at a belated stage. He did not lodge
any protest earlier at any point of time. During the period, the petitioner remained out of the job, he
was gainfully employed.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed.
4.
No rejoinder has been filed by the petitioner.
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5.
Per order dated 15.11.2013, following issues were struck:
1.
Whether time to time termination of the services/giving breaks in service to the
petitioner by the respondent from 06.03.1999 to 31.08.2007 is/was illegal and
unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form? ..OPR.
3.
Whether the claim petition is bad for non-joinder of the necessary parties as alleged.
If so, its effect?
..OPR.
4.
Whether the petition is hit by the vice of delay and laches 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
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: No
Issue No. 4
: No
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8.
Shri Dev Raj (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 admitted that his services were initially engaged in HPPWD,
National Highway Division, Joginder Nagar. HPPWD (B&R) Division, Joginder Nagar was created
in the month of January, 2004. He denied that at the time of issuance of the muster rolls, it was
conveyed to him and the other workmen that because of the non availability of the budget, their
services are being engaged for 10-15 or 20 days only. He denied that at the time of receiving the
payment or issuance of the muster rolls, he did not raise any objection regarding providing the
artificial breaks. He also denied that the instant industrial dispute has been raised by him at a
belated stage.
9.
Conversely, Shri Pawan Kumar Sharma, Executive Engineer (D) Circle Joginder
Nagar, HPPWD Joginder Nagar, who is also holding the charge of B&R Division Joginder Nagar
(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 the respondent.
In the cross-examination, he admitted that two Sub Divisions i.e. Joginder Nagar (B&R)
and Ladbharol (B&R) were under National Highway Division, Joginder Nagar. The budget for
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HPPWD Sub Division (B&R), Joginder Nagar was provided by the Himachal Pradesh
Government. The budget for the execution of the works carried out by the National Highway
Division was provided by the Government of India. He admitted that from the very beginning, the
petitioner served in B&R Sub Division, Joginder Nagar and is serving the said Sub Division even
now. He admitted that the workmen whose names find mention in Ex. RW1/E were engaged after
the employment of the petitioner and they completed 240 days of work earlier to him. No notice
regarding absence from duties was ever given to the petitioner. He admitted that the persons junior
to the petitioner have already been regularized. The nature of work being done by the petitioner and
his juniors was the same. He denied that he has given a phoney statement.
10.
Ex. RW1/B is the copy of a notification dated 9th December, 2003 issued by the
Public Works Department, Govt. of Himachal Pradesh. It depicts that the National Highways set up
was restructured.
11.
Ex. RW1/C is the copy of an office order dated 2nd January, 2004 issued by the
respondent. It unfolds that the newly created B&R Division, HPPWD, Joginder Nagar became
functional w.e.f. 2nd January, 2004 (forenoon).
12.
Ex. RW1/D is the mandays chart relating to the petitioner.
13.
Ex. RW1/E is the mandays chart/year-wise working days details in respect of the
daily waged beldars namely Shri Dalip Singh and nine others.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily waged beldar and he is working continuously. The mandays chart Ex. RW1/D unfolds
that the petitioner was initially employed in the month of March, 1999. The respondent has not
pleaded a single word to the effect that the initial appointment of the petitioner was made against
the Rules or in violation of the prescribed procedure.
15.
It is an admitted fact that the services of the petitioner were initially engaged by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. From the statement
made by the respondent (RW1), it can be gathered that two B&R Sub Divisions i.e. Joginder Nagar
and Ladbharol were working under National Highway Division, Joginder Nagar. From the very
beginning, the petitioner is serving HPPWD (B&R) Sub Division, Joginder Nagar, which
admittedly came under the control of the respondent with the creation of new B&R Division at
Joginder Nagar in the year 2004. Therefore, it can be safely said that from day one, the petitioner is
an employee of B&R Division and not the National Highway Division at Joginder Nagar.
16.
The mandays chart Ex. RW1/D clarifies that from the month of March, 1999 to
31.8.2007, work for the entire month was not provided to the petitioner by the respondent. The
muster rolls for 10-20 days in a month were issued in the name of the petitioner. If the services of
the petitioner used to be engaged for 10-20 days every month due to the non availability of the
budget and work, then why the persons junior to him (whose names figure in the list Ex. RW1/E)
were provided the work for 240 days or more by the respondent? The reasons to that effect being
obscure go to show that the respondent is not speaking the truth. 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.
17.
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
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petitioner is to be presumed in continuous and uninterrupted service of the respondent from the date
of his initial engagement to 31st August, 2007 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).
18.
This issue is decided in favour of the petitioner and against the respondent.
ISSUE NO. 2
19.
Not pressed.
ISSUE NO. 3
20.
Taking into account my findings on issue No.1 above, it is held that the State of H.P.
and Executive Engineer, HPPWD, National Highway Division, Joginder Nagar are not necessary
parties to the case. They may be proper parties.
21.
This issue too is decided in favour of the petitioner and against the respondent.
ISSUE NO. 4
22.
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.
23.
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.
24.
This issue is also decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 5)
25.
As a sequel to my findings on the various issues, the instant claim petition succeeds
in part and the same is partly allowed. The breaks given by the respondent to the petitioner up-to
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31.8.2007 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 March, 1999 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.
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 9th day of January, 2014.
(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.
: 28/2013
Date of Institution : 05.04.2013
Date of Decision
: 22.01.2014
Smt. Neela Devi w/o Shri Jagat Ram, r/o VPO Giun, Tehsil Sarkaghat, Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, HPPWD Division Dharampur, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Raj Kumar Sharma, Adv.
For the Respondent : Sh. Bhuvnesh Awasthi, Dy.D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Smt. Neela Devi W/O Sh. Jagat Ram, VPO Giun,
Tehsil Sarkaghat, Distt. Mandi by the Executive Engineer, HPPWD Division Dharampur,
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H.P. during the years, 1999 and 2002 without complying the provisions of the Industrial
Disputes Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that her
services were engaged as a daily rated beldar by the respondent on 1st July, 1998. She continuously
worked as such up-to 30.9.1999 as well as completed 240 days of work in a block of 12 calendar
months prior to the date of her termination. On 30th September, 1999, her services were terminated
by the respondent. Before the disengagement of her services, the procedure prescribed by law was
not adopted by the respondent. The persons junior to her namely S/Shri Raju Ram and Prem Singh
etc. were retained in service by the respondent. The latter failed to abide by the principle of ‘last
come first go’. The services of the persons junior to her have already been regularized by the
respondent/department. Not only this, 319 other workmen junior to her have been re-engaged by
the respondent as per the orders of this Court by ignoring her claim/seniority. Against the
retrenchment order, she (petitioner) had preferred Original Application (M) No. 385/1999 before
the erstwhile Hon’ble Himachal Pradesh Administrative Tribunal. Such Original Application was
allowed by the Hon’ble Administrative Tribunal. The respondent was directed to re-employ her in
the same capacity and at the same place where she was working prior to her termination. Against
the order/judgment of the Hon’ble Administrative Tribunal, the respondent filed CWP No. 1310 of
2001 before the Hon’ble High Court of Himachal Pradesh. The directions issued by the Hon’ble
Administrative Tribunal were not implemented by the respondent due to the filing of the CWP
before the Hon’ble High Court of Himachal Pradesh. It was held by the Hon’ble High Court that
the Administrative Tribunal had no jurisdiction to deal with the matter. A demand notice was
served upon the respondent by her. Conciliation proceedings were initiated by the Labour Officer-
cum-Conciliation Officer, Mandi, but in vain. The act and conduct of the respondent is illegal and
unjustified. It is also violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial
Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
As such, she (petitioner) prays that the termination order dated 30.9.1999 passed by the
respondent be upset. The respondent be directed to reinstate her in service with all consequential
benefits including the seniority, continuity in service and payment of the back wages etc.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been raised to the
effect that the claim petition is not maintainable since other efficacious remedies at the first
instance are available to the petitioner. The petition is hit by the vice of delay and laches. The
petitioner has not come to the Court with clean hands. She has suppressed the material facts from
the Court. The petitioner is estopped from filing the claim petition by her act and conduct.
On merits, it has been owned that the services of the petitioner were engaged as a daily
waged beldar on 01.7.1998 and she worked as such up-to 30.9.1999. It has been admitted that the
petitioner completed 240 days of work in a block of 12 calendar months preceding the date of her
termination. HPPWD Division Dharampur was opened in the month of November, 1998. Earlier,
the petitioner worked in Sarkaghat Division of the HPPWD. After opening of the new Division, the
petitioner was transferred from Sarkaghat Division to Dharampur Division. The services of the
petitioner were never terminated as alleged. Actually, on 30.9.1999, the petitioner left the job
voluntarily. She never reported for duty thereafter. Daily waged labourers were retrenched during
the month of February, 2004 and on 07.7.2005. The services of the petitioner were not disengaged
in the years 2004 or 2005 since she had abandoned the job way back in the year 1999. The
retrenched workmen have been re-engaged as per the orders passed by this Court, Hon’ble High
Court of Himachal Pradesh and the Chief Engineer, HPPWD Central Zone, Mandi. The services of
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the workmen have been regularized as per the policy of the State. Since the petitioner left the job
willingly, the question of violation of any provision of the Act does not arise.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed with costs.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 30.7.2013, following issues were struck:-
1.
Whether the termination of the services of the petitioner by the respondent in the
year 1999 is illegal and unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form? ..OPR.
3.
Whether the petitioner has not approached the Court with clean hands as alleged. If
so, its effect?
..OPR.
4.
Whether the claim petition suffers from the vice of delay and laches as alleged. If so,
its effect?
..OPR.
5.
Whether the petitioner has suppressed the true and material facts from the Court as
alleged. If so, its effect?
..OPR.
6.
Whether the petitioner is estopped from filing the claim petition by her act and
conduct as alleged. If so, its effect?
..OPR.
7.
Relief.
6.
At this stage, I will like to highlight that on 30.7.2013 itself the below given order
was also passed by this Court:-
“Neither any rejoinder filed nor intended to be filed. Ld. A.R. and csl. for the petitioner
state at bar that their client in fact served with the respondent/department upto 30-09-1999
only and they do not press the alleged termination of the services of the petitioner by the
respondent/department in the year 2002. The reply submitted by the respondent also
indicates that as per record, the petitioner served only upto 30th Sept., 1999”.
7.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
8.
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
Issue No. 4
: No
Issue No. 5
: Not pressed
Issue No. 6
: Not pressed
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Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9.
The petitioner Smt. Neela Devi stepped into the witness box as PW1. In her affidavit
Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the
petition/statement of claim in its entirety.
In the cross-examination, she denied that on 30.9.1999, she left the job of her own. She also
denied that no person junior to her was retained in service by the respondent and she has instituted
a phoney petition.
10.
Conversely, Sh. Anil Sangrai, Executive Engineer, HPPWD, Division Dharampur
(respondent) testified as RW1. He corroborated on oath the contents of the reply filed by him.
In his cross-examination, he admitted that all the workmen whose names have been
disclosed in paras 3 and 4 of the proof affidavit Ex. PW1/A are junior to the petitioner. They are
still working under him and their services have been regularized. He denied that the petitioner
worked only up-to 30.9.1999 and the mandays chart produced by him has been falsely prepared. No
notice regarding absence from duty was ever given to the petitioner.
11.
Ex. PW1/B is the seniority list/year-wise mandays chart in respect of Shri Shashi
Kant s/o Shri Bihari Lal, a daily wager, working under the respondent. It depicts that Shri Shashi
Kant was employed in the month of January, 2000 i.e. after the disengagement of the services of
the petitioner.
12.
Ex. PW1/C is the copy of the judgment dated December 22, 2009 rendered by the
Hon’ble High Court of Himachal Pradesh in CWP No.1310 of 2001 titled as State of Himachal
Pradesh versus Smt. Savitri Devi and three others. It unfolds that the order dated 07.3.2001 passed
by the Hon’ble Administrative Tribunal was set aside by the Hon’ble High Court on the ground that
the Hon’ble Tribunal had no jurisdiction to deal with the matter. The petitioner/workman was given
the liberty to initiate appropriate action/proceedings under the Act.
13.
Ex. RW1/A is the mandays chart relating to the petitioner.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily rated beldar on 1st July, 1998 and she worked as such up-to 30.9.1999. The
assertion/statement of the respondent (RW1) to the effect that the petitioner even served the
department after 30.9.1999 being beyond the pleadings cannot be read.
15.
The version of the petitioner is that on 30.9.1999, her services were wrongly and
illegally terminated by the respondent. While denying the said fact, the respondent has pleaded that
the petitioner abandoned the job of her own accord and free volition.
16.
It is well known that the abandonment has to be proved like any other fact by the
respondent/employer. Simply because a workman fails to report for duty, it cannot be presumed
that he/she has left/abandoned the job. There is nothing on the record to show that a notice was
served upon the petitioner by the respondent calling upon her to resume the duties after she
allegedly left the same. Absence from duty is serious misconduct. Admittedly, no disciplinary
proceedings were initiated against the petitioner by the respondent for her alleged willful absence
from duty. The plea of abandonment put forth by the respondent is not established.
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17.
The mandays chart Ex. RW1/A unfolds that in the year 1999 i.e. up-to 30.9.1999,
the petitioner had served the respondent/department for 248 days.
18.
Section 25F of the Act postulates as under:-
“25-F. Conditions precedent to retrenchment of workmen.-No workman employed in
any industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until-
(a)
the workman has been given one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired, or the workman has been paid in
lieu of such notice, wages for the period of the notice:
(b)
the workman has been paid, at the time of retrenchment compensation which shall
be equivalent to fifteen days’ average pay for every completed year of continuous
service or any part thereof in excess of six months; and
(c)
notice in the prescribed manner is served on the appropriate Government or such
authority as may be specified by the appropriate Government by notification in the
Official Gazette.”
19.
There is nothing on the record to show that before the disengagement of the services
of the petitioner, the provisions of the above quoted Section were complied with by the respondent.
20.
As already mentioned, Ex. PW1/B is the mandays chart pertaining to Shri Shashi
Kant. Its perusal discloses that his services were initially engaged by the respondent in the month of
January, 2000 i.e. after the termination of the services of the petitioner. There is not even an iota of
evidence on the file to prove that before employing Shri Shashi Kant, an opportunity of re-
employment as envisaged under Section 25-H of the Act was afforded to the petitioner by the
respondent.
21.
Not only this, Shri Anil Sangrai (RW1) in his cross-examination admitted that the
persons junior to the petitioner are still working under him. The services of the juniors have also
been regularized. This indicates that the respondent failed to abide by the principle of ‘last come
first go’. His action contravenes the provisions of Section 25-G of the Act.
22.
Such being the situation, I have no hesitation to conclude that the termination of the
services of the petitioner by the respondent on 30.9.1999 is illegal and unjustified.
23.
This issue is decided in favour of the petitioner and against the respondent.
ISSUES NO. 2, 3, 5 AND 6
24.
Not pressed.
ISSUE NO. 4
25.
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
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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.
26.
In Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota versus Mohan Lal, Civil Appeal No. 6795 of 2013, decided on 16th August, 2013, by the
Hon’ble Supreme Court of India, the issue regarding delay in raising the industrial dispute by the
workman was discussed. Paras 19 and 20 of the judgment read thus:-
“19. In a subsequent decision in Balbir Singh, this Court observed that Ajaib Singh was
confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea
of delay was raised before the Industrial Tribunal but we would emphasize the passage from
Balbir Singh where it was said: “Whether relief to the workman should be denied on the
ground of delay or it should be appropriately moulded is at the discretion of the Tribunal
depending on the facts and circumstances of the case. No doubt the discretion is to be
exercised judicially.
20. We are clearly of the view that though Limitation Act, 1963 is not applicable to the
reference made under the I.D. Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has been raised by the other side.
The legal position laid down by this Court in Gitam Singh that before exercising its judicial
discretion, the Labour Court has to keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of service, the ground on which
termination has been set aside and the delay in raising industrial dispute before grant of
relief in an industrial dispute, must be invariably followed.”
27.
In Mohan Lal’s case (cited supra), the workman/petitioner worked as a work-
charged employee for 286 days. The industrial dispute was raised by him after six years of the
termination. The Hon’ble Apex Court opined that the interest of justice will be sub-served if in lieu
of reinstatement, the compensation of Rs. 1,00,000/- (one lac) is paid to the workman by the
employer.
28.
Now comes the all important question as to what relief should be awarded/granted to
the petitioner.
29.
At the cost of reiteration, I will like to add that the petitioner served the respondent
in the years 1998 and 1999 only. The retrenchment of her services has been held to be bad in the
eyes of law in view of the provisions contained in Sections 25-F, 25-G and 25-H of the Act.
30.
Against the termination order dated 30.9.1999, the claimant/petitioner had preferred
O.A. (M) No.385/1999 before the Hon’ble Administrative Tribunal. Such Original Application was
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disposed of by the Hon’ble Administrative Tribunal per order/judgment delivered on 07.3.2001.
The Original Application was allowed by the Hon’ble Tribunal. Against the judgment/order dated
March 7, 2001 of the Hon’ble Administrative Tribunal, the respondent/State of Himachal Pradesh
preferred CWP No.1310 of 2001 before the Hon’ble High Court of Himachal Pradesh. The said
CWP was decided by the Hon’ble High Court vide judgment dated 22.12.2009, the copy of which
is Ex. PW1/C. While allowing the CWP, it was held by the Hon’ble High Court that the Hon’ble
Administrative Tribunal had no jurisdiction to entertain the Original Application. The order of the
Hon’ble Administrative Tribunal was set aside. The Hon’ble High Court opined:
“Keeping in view the fact that the respondents as workman employed in a lowly position
and the legal position was not clear at the time when the Original Application was filed and
disposed of by the Tribunal, we direct that the petitioner, if so advised, may take appropriate
action/proceedings under the Industrial Disputes Act. In case, they do so within three
months from today, the same shall not be defeated on the ground of the delay or limitation
since they were prosecuting the proceeding before the Tribunal and this Court”.
31.
The petitioner has placed on the record, the copy of the demand notice dated
03.11.2009 served upon the respondent by her under Section 2-A of the Act. The demand notice
was in-fact given by the petitioner before the disposal of the CWP by the Hon’ble High Court.
32.
The termination in question took place on 30.9.1999. The same was challenged by
the petitioner in the year 1999 itself by instituting Original Application No.385/1999. This shows
that the claimant/petitioner raised the dispute immediately after the retrenchment of her services.
Her claim is not liable to be defeated in view of the judgment dated 22.12.2009 (Ex. PW1/C)
pronounced by the Hon’ble High Court of Himachal Pradesh. Otherwise too, in the reply, the
respondent has admitted that the persons junior to the petitioner have already been re-engaged in
obedience to the orders passed by the Hon’ble High Court of Himachal Pradesh and this
Court/Tribunal.
33.
While testifying in the Court as PW1, the petitioner has given her age as 52 years. It
is well known that a lady like the petitioner will not sit at home during the period she is/was out of
the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. In the statement of claim/demand, the petitioner
has not whispered a single word to the effect that she is/was not gainfully employed. She is thus not
entitled to the back wages.
34.
Taking into consideration the trite laid down in Mohan Lal’s case (cited supra) and
all other relevant factors (narrated above), I feel that the petitioner is entitled to the reinstatement of
her services. She is also entitled to the seniority and continuity in service.
35.
This issue too is decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 7)
36.
As a sequel to my findings on the issues No.1 and 4, the instant claim petition
succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and
quashed. The respondent is directed to re-engage the petitioner forthwith. She shall be entitled to
the seniority and continuity in service from the date of her termination i.e. 30.9.1999 except back
wages. The respondent is also directed to consider the case of the petitioner for regularization of
her 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, she
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(petitioner) shall be entitled to the regularization from the date/month of the regularization of the
services of her junior(s). Parties to bear their own costs.
37.
Before parting with this matter, I will like to add that the statement made by the
respondent (RW1) and the evidence adduced by him are in-fact beyond the pleadings and contrary
to the reply. In the reply, the respondent admitted that the services of the petitioner were engaged
on 01.7.1998. In the mandays chart Ex. RW1/A, the date of joining of the petitioner is recorded as
01.8.1998. Further, in the reply, the respondent pleaded that the petitioner left the job on 30.9.1999
and, thereafter, never reported for duty. Strangely, in the mandays chart Ex. RW1/A, it has been
mentioned that the petitioner served the respondent/department in the years 2001 and 2002 as well.
This amply demonstrates that either the record is not being properly maintained in the office or
some mischief is being committed by fudging the record. Such mischief can be like preparing false
muster rolls of the workmen showing that they worked in a particular year (in which they never
worked) and were paid the wages. The matter being serious, this Court sincerely hopes and trusts
that the respondent will take corrective steps at his end.
38.
The reference is answered in the aforesaid terms.
39.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
40.
File after due completion be consigned to the Record Room.
Announced in the open Court today this 22nd day of January, 2014.
(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.
: 31/2013
Date of Institution : 05.04.2013
Date of Decision
: 22.01.2014
Smt. Neela Devi w/o Shri Amar Singh, r/o Village Putli-fald, P.O. Mandap, Tehsil
Sarkaghat, Distt. Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, HPPWD Division Dharampur, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Raj Kumar Sharma, Adv.
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For the Respondent : Sh. Bhuvnesh Awasthi, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Smt. Neela Devi W/O Shri Amar Singh, Village-
Putli-fald, P.O. Mandap, Tehsil Sarkaghat, Distt. Mandi by the Executive Engineer,
HPPWD Division Dharampur, H.P. during the years, 1999 and 2002 without complying the
provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount of
back wages, seniority, past service benefits and compensation the above aggrieved
workman is entitled to from the above employer?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that her
services were engaged as a daily rated beldar by the respondent on 1st July, 1998. She continuously
worked as such up-to 30.9.1999 as well as completed 240 days of work in a block of 12 calendar
months prior to the date of her termination. On 30th September, 1999, her services were terminated
by the respondent. Before the disengagement of her services, the procedure prescribed by law was
not adopted by the respondent. The persons junior to her namely S/Shri Raju Ram and Prem Singh
etc. were retained in service by the respondent. The latter failed to abide by the principle of ‘last
come first go’. The services of the persons junior to her have already been regularized by the
respondent/department. Not only this, 319 other workmen junior to her have been re-engaged by
the respondent as per the orders of this Court by ignoring her claim/seniority. Against the
retrenchment order, she (petitioner) had preferred Original Application (M) No. 385/1999 before
the erstwhile Hon’ble Himachal Pradesh Administrative Tribunal. Such Original Application was
allowed by the Hon’ble Administrative Tribunal. The respondent was directed to re-employ her in
the same capacity and at the same place where she was working prior to her termination. Against
the order/judgment of the Hon’ble Administrative Tribunal, the respondent filed CWP No. 1310 of
2001 before the Hon’ble High Court of Himachal Pradesh. The directions issued by the Hon’ble
Administrative Tribunal were not implemented by the respondent due to the filing of the CWP
before the Hon’ble High Court of Himachal Pradesh. It was held by the Hon’ble High Court that
the Administrative Tribunal had no jurisdiction to deal with the matter. A demand notice was
served upon the respondent by her. Conciliation proceedings were initiated by the Labour Officer-
cum-Conciliation Officer, Mandi, but in vain. The act and conduct of the respondent is illegal and
unjustified. It is also violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial
Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
As such, she (petitioner) prays that the termination order dated 30.9.1999 passed by the
respondent be upset. The respondent be directed to reinstate her in service with all consequential
benefits including the seniority, continuity in service and payment of the back wages etc.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been raised to the
effect that the claim petition is not maintainable since other efficacious remedies at the first
instance are available to the petitioner. The petition is hit by the vice of delay and laches. The
petitioner has not come to the Court with clean hands. She has suppressed the material facts from
the Court. The petitioner is estopped from filing the claim petition by her act and conduct.
On merits, it has been owned that the services of the petitioner were engaged as a daily
waged beldar on 01.7.1998 and she worked as such up-to 30.9.1999. It has been admitted that the
petitioner completed 240 days of work in a block of 12 calendar months preceding the date of her
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termination. HPPWD Division, Dharampur, was opened in the month of November, 1998. Earlier,
the petitioner worked in Sarkaghat Division of the HPPWD. After opening of the new Division the
petitioner was transferred from Sarkaghat Division to Dharampur Division. The services of the
petitioner were never terminated as alleged. Actually, on 30.9.1999, the petitioner left the job
voluntarily. She never reported for duty thereafter. Daily waged labourers were retrenched during
the month of February, 2004 and on 07.7.2005. The services of the petitioner were not disengaged
in the years 2004 or 2005 since she had abandoned the job way back in the year 1999. The
retrenched workmen have been re-engaged as per the orders passed by this Court, Hon’ble High
Court of Himachal Pradesh and the Chief Engineer, HPPWD, Central Zone, Mandi. The services of
the workmen have been regularized as per the policy of the State. Since the petitioner left the job
willingly, the question of violation of any provision of the Act does not arise.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed with costs.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 30.7.2013, following issues were struck:—
1.
Whether the termination of the services of the petitioner by the respondent in the
year 1999 is illegal and unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form? ..OPR.
3.
Whether the petitioner has not approached the Court with clean hands as alleged. If
so, its effect?
..OPR.
4.
Whether the claim petition suffers from the vice of delay and laches as alleged. If so,
its effect?
..OPR.
5.
Whether the petitioner has suppressed the true and material facts from the Court as
alleged. If so, its effect?
..OPR.
6.
Whether the petitioner is estopped from filing the claim petition by her act and
conduct as alleged. If so, its effect?
..OPR.
7.
Relief.
6.
At this stage, I will like to highlight that on 30.7.2013 itself the below given order
was also passed by this Court:—
“Neither any rejoinder filed nor intended to be filed. Ld. A.R. and csl. for the petitioner
state at bar that their client in fact served with the respondent/department upto 30-09-1999
only and they do not press the alleged termination of the services of the petitioner by the
respondent/department in the year 2002. The reply submitted by the respondent also
indicates that as per record, the petitioner served only upto 30th Sept., 1999”.
7.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
8.
For the reasons detailed here under, my findings on the above issues are as
follows:—
Issue No. 1
: Yes
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Issue No. 2
: Not pressed
Issue No. 3
: Not pressed
Issue No. 4
: No
Issue No. 5
: Not pressed
Issue No. 6
: Not pressed
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9.
The petitioner Smt. Neela Devi stepped into the witness box as PW1. In her affidavit
Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the
petition/statement of claim in its entirety.
In the cross-examination, she denied that on 30.9.1999, she left the job of her own. She also
denied that no person junior to her was retained in service by the respondent and she has instituted
a phoney petition.
10.
Conversely, Sh. Anil Sangrai, Executive Engineer, HPPWD, Division Dharampur
(respondent) testified as RW1. He corroborated on oath the contents of the reply filed by him.
In his cross-examination, he admitted that all the workmen whose names have been
disclosed in paras 3 and 4 of the proof affidavit Ex. PW1/A are junior to the petitioner. They are
still working under him and their services have been regularized. He denied that the petitioner
worked only up-to 30.9.1999 and the mandays chart produced by him has been falsely prepared. No
notice regarding absence from duty was ever given to the petitioner.
11.
Ex. PW1/B is the seniority list/year-wise mandays chart in respect of Shri Shashi
Kant s/o Shri Bihari Lal, a daily wager, working under the respondent. It depicts that Shri Shashi
Kant was employed in the month of January, 2000 i.e. after the disengagement of the services of
the petitioner.
12.
Ex. PW1/C is the copy of the judgment dated December 22, 2009 rendered by the
Hon’ble High Court of Himachal Pradesh in CWP No.1310 of 2001 titled as State of Himachal
Pradesh versus Smt. Savitri Devi and three others. It unfolds that the order dated 07.3.2001 passed
by the Hon’ble Administrative Tribunal was set aside by the Hon’ble High Court on the ground that
the Hon’ble Tribunal had no jurisdiction to deal with the matter. The petitioner/workman was given
the liberty to initiate appropriate action/proceedings under the Act.
13.
Ex. RW1/A is the mandays chart relating to the petitioner.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily rated beldar on 1st July, 1998 and she worked as such up-to 30.9.1999. The
assertion/statement of the respondent (RW1) to the effect that the petitioner even served the
department after 30.9.1999 being beyond the pleadings cannot be read.
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15.
The version of the petitioner is that on 30.9.1999, her services were wrongly and
illegally terminated by the respondent. While denying the said fact, the respondent has pleaded that
the petitioner abandoned the job of her own accord and free volition.
16.
It is well known that the abandonment has to be proved like any other fact by the
respondent/employer. Simply because a workman fails to report for duty, it cannot be presumed
that he/she has left/abandoned the job. There is nothing on the record to show that a notice was
served upon the petitioner by the respondent calling upon her to resume the duties after she
allegedly left the same. Absence from duty is serious misconduct. Admittedly, no disciplinary
proceedings were initiated against the petitioner by the respondent for her alleged willful absence
from duty. The plea of abandonment put forth by the respondent is not established.
17.
The mandays chart Ex. RW1/A unfolds that in the year 1999 i.e. up-to 30.9.1999,
the petitioner had served the respondent/department for 244 days.
18.
Section 25-F of the Act postulates as under:—
“25-F. Conditions precedent to retrenchment of workmen.—No workman employed in
any industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until-
(a) the workman has been given one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired, or the workman has been paid in lieu of
such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment compensation which shall be
equivalent to fifteen days’ average pay for every completed year of continuous service or
any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such
authority as may be specified by the appropriate Government by notification in the Official
Gazette.”
19.
There is nothing on the record to show that before the disengagement of the services
of the petitioner, the provisions of the above quoted Section were complied with by the respondent.
20.
As already mentioned, Ex. PW1/B is the mandays chart pertaining to Shri Shashi
Kant. Its perusal discloses that his services were initially engaged by the respondent in the month of
January, 2000 i.e. after the termination of the services of the petitioner. There is not even an iota of
evidence on the file to prove that before employing Shri Shashi Kant, an opportunity of re-
employment as envisaged under Section 25-H of the Act was afforded to the petitioner by the
respondent.
21.
Not only this, Shri Anil Sangrai (RW1) in his cross-examination admitted that the
persons junior to the petitioner are still working under him. The services of the juniors have also
been regularized. This indicates that the respondent failed to abide by the principle of ‘last come
first go’. His action contravenes the provisions of Section 25-G of the Act.
22.
Such being the situation, I have no hesitation to conclude that the termination of the
services of the petitioner by the respondent on 30.9.1999 is illegal and unjustified.
23.
This issue is decided in favour of the petitioner and against the respondent.
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ISSUES NO. 2, 3, 5 AND 6
24.
Not pressed.
ISSUE NO. 4
25.
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.
26.
In Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota versus Mohan Lal, Civil Appeal No. 6795 of 2013, decided on 16th August, 2013, by the
Hon’ble Supreme Court of India, the issue regarding delay in raising the industrial dispute by the
workman was discussed. Paras 19 and 20 of the judgment read thus:—
“19. In a subsequent decision in Balbir Singh, this Court observed that Ajaib Singh was
confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea
of delay was raised before the Industrial Tribunal but we would emphasize the passage from
Balbir Singh where it was said: “Whether relief to the workman should be denied on the
ground of delay or it should be appropriately moulded is at the discretion of the Tribunal
depending on the facts and circumstances of the case. No doubt the discretion is to be
exercised judicially.
20.
We are clearly of the view that though Limitation Act, 1963 is not applicable to the
reference made under the I.D. Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has been raised by the other side.
The legal position laid down by this Court in Gitam Singh that before exercising its judicial
discretion, the Labour Court has to keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of service, the ground on which
termination has been set aside and the delay in raising industrial dispute before grant of
relief in an industrial dispute, must be invariably followed.”
27.
In Mohan Lal’s case (cited supra), the workman/petitioner worked as a work-
charged employee for 286 days. The industrial dispute was raised by him after six years of the
termination. The Hon’ble Apex Court opined that the interest of justice will be sub-served if in lieu
of reinstatement, the compensation of Rs. 1,00,000/- (one lac) is paid to the workman by the
employer.
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28.
Now comes the all important question as to what relief should be awarded/granted to
the petitioner.
29.
At the cost of reiteration, I will like to add that the petitioner served the respondent
in the years 1998 and 1999 only. The retrenchment of her services has been held to be bad in the
eyes of law in view of the provisions contained in Sections 25-F, 25-G and 25-H of the Act.
30.
Against the termination order dated 30.9.1999 the claimant/petitioner had preferred
O.A. (M) No.385/1999 before the Hon’ble Administrative Tribunal. Such Original Application was
disposed of by the Hon’ble Administrative Tribunal per order/judgment delivered on 07.3.2001.
The Original Application was allowed by the Hon’ble Tribunal. Against the judgment/order dated
March 7, 2001 of the Hon’ble Administrative Tribunal the respondent/State of Himachal Pradesh
preferred CWP No.1310 of 2001 before the Hon’ble High Court of Himachal Pradesh. The said
CWP was decided by the Hon’ble High Court vide judgment dated 22.12.2009, the copy of which
is Ex. PW1/C. While allowing the CWP, it was held by the Hon’ble High Court that the Hon’ble
Administrative Tribunal had no jurisdiction to entertain the Original Application. The order of the
Hon’ble Administrative Tribunal was set aside. The Hon’ble High Court opined:
“Keeping in view the fact that the respondents as workman employed in a lowly position
and the legal position was not clear at the time when the Original Application was filed and
disposed of by the Tribunal, we direct that the petitioner, if so advised, may take appropriate
action/proceedings under the Industrial Disputes Act. In case, they do so within three
months from today, the same shall not be defeated on the ground of the delay or limitation
since they were prosecuting the proceeding before the Tribunal and this Court”.
31.
The petitioner has placed on the record the copy of the demand notice dated
03.11.2009 served upon the respondent by her under Section 2-A of the Act. The demand notice
was infact given by the petitioner before the disposal of the CWP by the Hon’ble High Court.
32.
The termination in question took place on 30.9.1999. The same was challenged by
the petitioner in the year 1999 itself by instituting Original Application No.385/1999. This shows
that the claimant/petitioner raised the dispute immediately after the retrenchment of her services.
Her claim is not liable to be defeated in view of the judgment dated 22.12.2009 (Ex. PW1/C)
pronounced by the Hon’ble High Court of Himachal Pradesh. Otherwise too, in the reply, the
respondent has admitted that the persons junior to the petitioner have already been re-engaged in
obedience to the orders passed by the Hon’ble High Court of Himachal Pradesh and this
Court/Tribunal.
33.
While testifying in the Court as PW1, the petitioner has given her age as 48 years. It
is well known that a lady like the petitioner will not sit at home during the period she is/was out of
the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. In the statement of claim/demand, the petitioner
has not whispered a single word to the effect that she is/was not gainfully employed. She is thus not
entitled to the back wages.
34.
Taking into consideration the trite laid down in Mohan Lal’s case (cited supra) and
all other relevant factors (narrated above), I feel that the petitioner is entitled to the reinstatement of
her services. She is also entitled to the seniority and continuity in service.
35.
This issue too is decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 7)
36.
As a sequel to my findings on the issues No.1 and 4, the instant claim petition
succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and
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quashed. The respondent is directed to re-engage the petitioner forthwith. She shall be entitled to
the seniority and continuity in service from the date of her termination i.e. 30.9.1999 except back
wages. The respondent is also directed to consider the case of the petitioner for regularization of
her 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, she
(petitioner) shall be entitled to the regularization from the date/month of the regularization of the
services of her junior(s). Parties to bear their own costs.
37.
Before parting with this matter, I will like to add that the statement made by the
respondent (RW1) and the evidence adduced by him are in-fact beyond the pleadings and contrary
to the reply. In the reply, the respondent admitted that the services of the petitioner were engaged
on 01.7.1998. In the mandays chart Ex. RW1/A, the date of joining of the petitioner is recorded as
01.1.1999. Further, in the reply, the respondent pleaded that the petitioner left the job on 30.9.1999
and, thereafter, never reported for duty. Strangely, in the mandays chart Ex. RW1/A, it has been
mentioned that the petitioner served the respondent/department in the years 2001 and 2002 as well.
This amply demonstrates that either the record is not being properly maintained in the office or
some mischief is being committed by fudging the record. Such mischief can be like preparing false
muster rolls of the workmen showing that they worked in a particular year (in which they never
worked) and were paid the wages. The matter being serious, this Court sincerely hopes and trusts
that the respondent will take corrective steps at his end.
38.
The reference is answered in the aforesaid terms.
39.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
40.
File after due completion be consigned to the Record Room.
Announced in the open Court today this 22nd day of January, 2014.
(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.
: 325/2012
Date of Institution : 03.9.2012
Date of Decision
: 09.01.2014
Smt. Nirmla Devi w/o Shri Kanshi Ram, r/o Village Sihan, P.O. Drahal, Tehsil Joginder
Nagar, District Mandi, H.P.
..Petitioner.
Versus
The Executive Engineer, H.P.P.W.D. Division, Joginder Nagar, District Mandi, H.P.
..Respondent
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Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Suresh Sharma, Adv.
For the Respondent : Sh. Soham Kaushal, ADA
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services/giving breaks in services of Smt. Nirmla Devi W/O
Shri Kanshi Ram, R/O Village Sihan, P.O. Drahal, Tehsil Joginder Nagar, District Mandi,
H.P. from time to time during August, 1998 to 31-08-2007 by the Executive Engineer,
H.P.P.W.D. Division, Joginder Nagar, District Mandi, H.P. without complying with the
provisions of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of
back wages, seniority, past service benefits and compensation the above worker is entitled
to from the above employer?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that her
services were engaged as a daily rated beldar on 01.08.1998 by the HPPWD in the National
Highway Division, Joginder Nagar. Later on, the workmen of the said Division including her
(petitioner) were put under the control of the newly created HPPWD B&R Division, Joginder
Nagar. The new Division came into existence in the month of January, 2004. From the date of her
initial engagement up-to 31.8.2007, the respondent/department gave her the fictional breaks from
time to time. Muster roll for 15 days in a month used to be issued in her (petitioner’s) name despite
the fact that the work for the entire month was available with the respondent/department. The
persons junior to her (petitioner) working in the same category were allowed to complete 240 days
of work in a calendar year by the respondent/department. The names of the juniors are S/Sh. Dalip
Singh and Gautam Singh etc. The juniors have also been regularized. The respondent stopped
granting the artificial breaks to her (petitioner) w.e.f. 01.9.2007. After that, she was allowed to
complete 240 days of work in each and every calendar year of her employment. The fictional
breaks were given by the respondent arbitrarily. She has been discriminated. The work for which
her services were engaged is of permanent nature and is still continuing. From 01.08.1998 to
31.8.2007, she requested the respondent time and again to stop giving her the fictional breaks, but
in vain. During the break period, she remained without work and could not get employment
anywhere else despite the best efforts. She is entitled to the seniority for the break period. This
Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as General
Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the workmen.
The act and conduct of the respondent is illegal and unjustified. It is also violative of Sections 25-F,
25-G, 25-H and other provisions of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for
short).
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:—
“the claim petition of the petitioner may kindly be allowed and he be given the benefit of
seniority for the period of fictional breaks alongwith back wages, he be regularized with
other consequential service benefits or any other relief, to which this Hon’ble Court deems
the petitioner fit under the facts and circumstances stated supra may also be granted in
favour of the petitioner and against the respondent HPPWD and the reference may kindly be
allowed in favour of the petitioner with cost in the interest of justice and justice be done”.
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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 State of H.P. and the Executive Engineer, National Highway Division,
HPPWD, Joginder Nagar are necessary parties to the case. They have not been joined as parties to
the lis. The 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 by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar in the
month of February, 1999. His (respondent’s) office was created in the month of January, 2004 vide
notification dated 9th December, 2003 issued by the Government. The office started functioning
w.e.f. 2nd January, 2004. After creation of his (respondent’s) office, the petitioner and some other
workmen were transferred from the HPPWD, National Highway Division, Joginder Nagar to the
HPPWD (B&R) Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004 relates to
the office of the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar, who
has not been joined as a party to the case. No fictional breaks were provided to the petitioner as
alleged. The work was made available to the petitioner on her verbal requests from time to time as
per the availability of the funds and requirement. At the time of engaging the services of the
petitioner, she was duly informed that she has been engaged for a particular period of 10-15 or 20
days and his (respondent’s) office is not in a position to provide the work to her (petitioner) for the
whole month. The mandays chart of the petitioner is annexure R2. Almost all the workmen, whose
names have been disclosed by the petitioner, are senior to her. Moreover, to meet any exigency or
natural disaster/calamity, the department had to keep a permanent gang of the beldars/daily waged
workers to be deployed in emergency. The petitioner has not been discriminated. At the time of the
disengagement of the workmen due to non availability of the work and the funds, the principle of
‘last come first go’ was strictly followed except in case of the workmen who were employed to
meet out the emergent situation. The petitioner is not entitled to any protection under the Act. Now
she is working continuously with him (respondent). The instant industrial dispute has been raised
by the petitioner at a belated stage in the year 2010. She did not lodge any protest earlier at any
point of time. During the period, the petitioner remained out of the job, she was gainfully employed
as an agriculturist. The Award dated 02.11.2010 rendered in Reference No.110/2006 has no bearing
on the facts of this case. The petition is meritless.
In these circumstances, the respondent prays that the petition in hand be dismissed.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 23.9.2013, following issues were struck:
1.
Whether time to time termination of the services of the petitioner by the respondent
from the month of August, 1998 to 31-08-2007 is/was 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 as alleged. If so, its effect?
..OPR.
4.
Whether the petition is bad for non-joinder of the necessary parties as alleged. If so,
its effect?
..OPR.
5.
Relief.
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6.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
7.
For the reasons detailed here under, my findings on the above issues are as
follows:—
Issue No. 1
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: No
Issue No. 4
: No
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8.
Smt. Nirmla Devi (petitioner) stepped into the witness box as PW1. In her affidavit
Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the
petition/statement of claim in its entirety.
In the cross-examination, she admitted that her services were initially engaged in HPPWD,
National Highway Division, Joginder Nagar. She does not know that the HPPWD Division,
Joginder Nagar was created in the month of January, 2004 and she was transferred to the B&R
Division along-with the others. She denied that at the time of the issuance of the muster rolls, it was
conveyed to her and other workmen that because of the non availability of the budget, their services
are being engaged for 15 or 20 days only. She denied that at the time of receiving the payment or
issuance of the muster rolls, she did not raise any objection regarding providing the artificial
breaks.
9.
Conversely, Shri Pawan Kumar Sharma, Executive Engineer, (D) Circle Joginder
Nagar, HPPWD Joginder Nagar, who is also holding the charge of B&R Division Joginder Nagar
(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 the respondent.
In the cross-examination, he admitted that two Sub Divisions i.e. Joginder Nagar (B&R)
and Ladbharol (B&R) were under National Highway Division, Joginder Nagar. The budget for
HPPWD Sub Division (B&R), Joginder Nagar was provided by the Himachal Pradesh
Government. The budget for the execution of the works carried out by the National Highway
Division was provided by the Government of India. He admitted that from the very beginning, the
petitioner served in B&R Sub Division, Joginder Nagar and is serving the said Sub Division even
now. He admitted that the workmen whose names find mention in Ex. RW1/E were engaged after
the employment of the petitioner and they completed 240 days of work earlier to her. No notice
regarding absence from duties was ever given to the petitioner. He admitted that the persons junior
to the petitioner have already been regularized. The nature of work being done by the petitioner and
her juniors was the same. He denied that he has given a phoney statement.
10.
Ex. RW1/B is the copy of a notification dated 9th December, 2003 issued by the
Public Works Department, Govt. of Himachal Pradesh. It depicts that the National Highways set up
was restructured.
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11.
Ex. RW1/C is the copy of an office order dated 2nd January, 2004 issued by the
respondent. It unfolds that the newly created B&R Division, HPPWD, Joginder Nagar became
functional w.e.f. 2nd January, 2004 (forenoon).
12.
Ex. RW1/D is the mandays chart relating to the petitioner.
13.
Ex. RW1/E is the mandays chart/year-wise working days details in respect of the
daily waged beldars namely Smt. Geet Devi and nine others.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily waged beldar and she is working continuously. The mandays chart Ex. RW1/D unfolds
that the petitioner was initially employed on 06.02.1999. The respondent has not pleaded a single
word to the effect that the initial appointment of the petitioner was made against the Rules or in
violation of the prescribed procedure.
15.
It is an admitted fact that the services of the petitioner were initially engaged by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. From the statement
made by the respondent (RW1), it can be gathered that two B&R Sub Divisions i.e. Joginder Nagar
and Ladbharol were working under National Highway Division, Joginder Nagar. From the very
beginning, the petitioner is serving HPPWD (B&R) Sub Division, Joginder Nagar, which
admittedly came under the control of the respondent with the creation of new B&R Division at
Joginder Nagar in the year 2004. Therefore, it can be safely said that from day one, the petitioner is
an employee of B&R Division and not the National Highway Division at Joginder Nagar.
16.
The mandays chart Ex. RW1/D clarifies that from the month of February, 1999 to
31.8.2007, work for the entire month was not provided to the petitioner by the respondent. The
muster rolls for 10-20 days in a month were issued in the name of the petitioner. If the services of
the petitioner used to be engaged for 10-20 days every month due to the non availability of the
budget and work, then why the persons junior to her (whose names figure in the list Ex. RW1/E),
were provided the work for 240 days or more by the respondent? The reasons to that effect being
obscure go to show that the respondent is not speaking the truth. 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.
17.
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 date
of her initial engagement to 31st August, 2007 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).
18.
This issue is decided in favour of the petitioner and against the respondent.
ISSUE NO. 2
19.
Not pressed.
ISSUE NO. 3
20.
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
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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.
21.
While testifying in the Court as PW1, the petitioner has given her age as 54 years. It
is well known that a lady like the petitioner will not sit at home during the period she is/was out of
the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. For these reasons, she is not entitled to the
wages for break period.
22.
This issue is also decided in favour of the petitioner and against the respondent.
ISSUE NO. 4
23.
Taking into account my findings on the issues No.1 and 3 above, it is held that the
State of H.P. and Executive Engineer, HPPWD, National Highway Division, Joginder Nagar are
not necessary parties to the case. They may be proper parties.
24.
This issue too is decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 5)
25.
As a sequel to my findings on the issues No. 1, 3 and 4 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 31.8.2007 being artificial/fictional are held to be wrong and illegal. She (petitioner)
shall be entitled to the seniority and continuity in service from the date of her initial engagement
except back wages. The respondent is also directed to consider the case of the petitioner for
regularization of her 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, she (petitioner) shall be entitled to the regularization from the date/month of the
regularization of the services of her junior(s). 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.
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Announced in the open Court today this 9th day of January, 2014.
(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.
: 126/2013
Date of Institution : 24.8.2013
Date of Decision
: 09.01.2014
Smt. Pyaro Devi w/o Shri Gandhi Ram, r/o Village Mangail, P.O. Khaddar, Tehsil Lad
Bharol, District Mandi, H.P.
..Petitioner.
Versus
Executive Engineer, B&R Division H.P.P.W.D. Division, Joginder Nagar, District Mandi,
H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Suresh Sharma, Adv.
For the Respondent : Sh. Bhuvnesh Awasthi, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Pyaro Devi W/O Shri Gandhi
Ram, R/O Village Mangail, P.O. Khaddar, Tehsil Lad Bharol, District Mandi, H.P. w.e.f.
07.11.2001 to 31.08.2007 by the Executive Engineer, B&R Division H.P.P.W.D., Joginder
Nagar, District Mandi, H.P. without complying with the provisions of the Industrial
Disputes Act, 1947, 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 her
services were engaged as a daily rated beldar on 07.11.2001 by the HPPWD in the National
Highway Division, Joginder Nagar. Later on, the workmen of the said Division including her
(petitioner) were put under the control of the newly created HPPWD B&R Division, Joginder
Nagar. The new Division came into existence in the month of January, 2004. From the date of her
initial engagement up-to 31.8.2007, the respondent/department gave her the fictional breaks from
time to time. Muster roll for 15 days in a month used to be issued in her (petitioner’s) name despite
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the fact that the work for the entire month was available with the respondent/department. The
persons junior to her (petitioner) working in the same category were allowed to complete 240 days
of work in a calendar year by the respondent/department. The names of the juniors are S/Sh. Dalip
Singh and Gautam Singh etc. The juniors have also been regularized. The respondent stopped
granting the artificial breaks to her (petitioner) w.e.f. 01.9.2007. After that, she was allowed to
complete 240 days of work in each and every calendar year of her employment. The fictional
breaks were given by the respondent arbitrarily. She has been discriminated. The work for which
her services were engaged is of permanent nature and is still continuing. From 07.11.2001 to
31.8.2007, she requested the respondent time and again to stop giving her the fictional breaks, but
in vain. During the break period, she remained without work and could not get employment
anywhere else despite the best efforts. She is entitled to the seniority for the break period. This
Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as General
Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the workmen.
The act and conduct of the respondent is illegal and unjustified. It is also violative of Sections 25-F,
25-G, 25-H and other provisions of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for
short).
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:—
“the claim petition of the petitioner may kindly be allowed and he be given the benefit of
seniority for the period of fictional breaks alongwith back wages, he be regularized with
other consequential service benefits or any other relief, to which this Hon’ble Court deems
the petitioner fit under the facts and circumstances stated supra may also be granted in
favour of the petitioner and against the respondent HPPWD and the reference may kindly be
allowed in favour of the petitioner with cost in the interest of justice and justice be done”.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been taken to the
effect that the claim petition is not maintainable since no legal or fundamental right of the petitioner
has been infringed. The State of H.P. and the Executive Engineer, National Highway Division,
HPPWD, Joginder Nagar are necessary parties to the case. They have not been joined as parties to
the lis. The 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 by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar in the
month of November, 1998. His (respondent’s) office was created in the month of January, 2004
vide notification dated 9th December, 2003 issued by the Government. The office started
functioning w.e.f. 2nd January, 2004. After creation of his (respondent’s) office, the petitioner and
some other workmen were transferred from the HPPWD, National Highway Division, Joginder
Nagar to the HPPWD (B&R) Division, Joginder Nagar. The claim of the petitioner prior to
01.1.2004 relates to the office of the Executive Engineer, National Highway Division, HPPWD,
Joginder Nagar, who has not been joined as a party to the case. No fictional breaks were provided
to the petitioner as alleged. The work was made available to the petitioner on her verbal requests
from time to time as per the availability of the funds and requirement. At the time of engaging the
services of the petitioner, she was duly informed that she has been engaged for a particular period
of 10-15 or 20 days and his (respondent’s) office is not in a position to provide the work to her
(petitioner) for the whole month. The mandays chart of the petitioner is annexure R2. Almost all
the workmen, whose names have been disclosed by the petitioner, are senior to her. The petitioner
has not been discriminated. At the time of the disengagement of the workmen due to non
availability of the work and the funds, the principle of ‘last come first go’ was strictly followed.
The petitioner is not entitled to any protection under the Act. Now she is working continuously
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with him (respondent). The instant industrial dispute has been raised by the petitioner at a belated
stage. She did not lodge any protest earlier at any point of time. During the period, the petitioner
remained out of the job, she was gainfully employed.
In these circumstances, the respondent prays that the petition in hand be dismissed.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 15.11.2013, following issues were struck:
1.
Whether time to time termination of the services/giving breaks in service to the
petitioner by the respondent from 07-11-2001 to 3108.2007 is/was 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 as alleged. If so, its effect?
..OPR.
4.
Whether the petition is bad for non-joinder of the necessary parties 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
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: No
Issue No. 4
: No
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8. Smt. Pyaro Devi (petitioner) stepped into the witness box as PW1. In her affidavit Ex.
PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the
petition/statement of claim in its entirety.
In the cross-examination, she admitted that her services were initially engaged in HPPWD,
National Highway Division, Joginder Nagar. HPPWD (B&R) Division, Joginder Nagar was created
in the month of January, 2004. She denied that at the time of issuance of the muster rolls, it was
conveyed to her and the other workmen that because of the non availability of the budget, their
services are being engaged for 10-15 or 20 days only. She denied that at the time of receiving the
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payment or issuance of the muster rolls, she did not raise any objection regarding providing the
artificial breaks. She also denied that the instant industrial dispute has been raised by her at a
belated stage.
9.
Conversely, Shri Pawan Kumar Sharma, Executive Engineer, (D) Circle Joginder
Nagar, HPPWD Joginder Nagar, who is also holding the charge of B&R Division Joginder Nagar
(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 the respondent.
In the cross-examination, he admitted that two Sub Divisions i.e. Joginder Nagar (B&R)
and Ladbharol (B&R) were under National Highway Division, Joginder Nagar. The budget for
HPPWD Sub Division (B&R), Joginder Nagar was provided by the Himachal Pradesh
Government. The budget for the execution of the works carried out by the National Highway
Division was provided by the Government of India. He admitted that from the very beginning, the
petitioner served in B&R Sub Division, Joginder Nagar and is serving the said Sub Division even
now. He admitted that the workmen whose names find mention in Ex. RW1/E were engaged after
the employment of the petitioner and they completed 240 days of work earlier to her. No notice
regarding absence from duties was ever given to the petitioner. He admitted that the persons junior
to the petitioner have already been regularized. The nature of work being done by the petitioner and
her juniors was the same. He denied that he has given a phoney statement.
10.
Ex. RW1/B is the copy of a notification dated 9th December, 2003 issued by the
Public Works Department, Govt. of Himachal Pradesh. It depicts that the National Highways set up
was restructured.
11.
Ex. RW1/C is the copy of an office order dated 2nd January, 2004 issued by the
respondent. It unfolds that the newly created B&R Division, HPPWD, Joginder Nagar became
functional w.e.f. 2nd January, 2004 (forenoon).
12.
Ex. RW1/D is the mandays chart relating to the petitioner.
13.
Ex. RW1/E is the mandays chart/year-wise working days details in respect of the
daily waged beldars namely Shri Dalip Singh and nine others.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily waged beldar and she is working continuously. The mandays chart Ex. RW1/D unfolds
that the petitioner was initially employed in November, 1998. The respondent has not pleaded a
single word to the effect that the initial appointment of the petitioner was made against the Rules or
in violation of the prescribed procedure.
15.
It is an admitted fact that the services of the petitioner were initially engaged by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. From the statement
made by the respondent (RW1), it can be gathered that two B&R Sub Divisions i.e. Joginder Nagar
and Ladbharol were working under National Highway Division, Joginder Nagar. From the very
beginning, the petitioner is serving HPPWD (B&R) Sub Division, Joginder Nagar, which
admittedly came under the control of the respondent with the creation of new B&R Division at
Joginder Nagar in the year 2004. Therefore, it can be safely said that from day one, the petitioner is
an employee of B&R Division and not the National Highway Division at Joginder Nagar.
16.
The mandays chart Ex. RW1/D clarifies that from 07/11/2001 to 31.8.2007, work
for the entire month was not provided to the petitioner by the respondent. The muster rolls for 10-
20 days in a month were issued in the name of the petitioner. If the services of the petitioner used to
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be engaged for 10-20 days every month due to the non availability of the budget and work, then
why the persons junior to her (whose names figure in the list Ex. RW1/E), were provided the work
for 240 days or more by the respondent? The reasons to that effect being obscure go to show that
the respondent is not speaking the truth. 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.
17.
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
07/11/2001 to 31st August, 2007 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).
18.
This issue is decided in favour of the petitioner and against the respondent.
ISSUE NO. 2
19.
Not pressed.
ISSUE NO. 3
20.
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.
21.
While testifying in the Court as PW1, the petitioner has given her age as 56 years. It
is well known that a lady like the petitioner will not sit at home during the period she is/was out of
the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. For these reasons, she is not entitled to the
wages for break period.
22.
This issue is also decided in favour of the petitioner and against the respondent.
ISSUE NO. 4
23.
Taking into account my findings on the issues No.1 and 3 above, it is held that the
State of H.P. and Executive Engineer, HPPWD, National Highway Division, Joginder Nagar are
not necessary parties to the case. They may be proper parties.
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24.
This issue too is decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 5)
25.
As a sequel to my findings on the issues No. 1, 3 and 4 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 31.8.2007 being artificial/fictional are held to be wrong and illegal. She (petitioner)
shall be entitled to the seniority and continuity in service from 07/11/2001 except back wages. The
respondent is also directed to consider the case of the petitioner for regularization of her 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, she (petitioner) shall
be entitled to the regularization from the date/month of the regularization of the services of her
junior(s). 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 9th day of January, 2014.
(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.
: 124/2013
Date of Institution : 24.08.2013
Date of Decision
: 09.01.2014
Shri Sant Ram s/o Shri Sher Singh, r/o Village Antola, P.O. Kolang, Tehsil Joginder Nagar,
Distt. Mandi, H.P.
..Petitioner.
Versus
Executive Engineer, B&R Division, H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Suresh Sharma, Adv.
For the Respondent : Sh. Soham Kaushal, ADA
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AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Sant Ram S/O Sher Singh, R/O
Village Antola, P.O. Kolang, Tehsil Joginder Nagar, District Mandi, H.P. w.e.f. year, 2000
to 31.08.2007 by the Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar,
District Mandi, H.P. without complying with the provisions of the Industrial Disputes Act,
1947, 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 as a daily rated beldar on 01.1.2000 by the HPPWD in the National
Highway Division, Joginder Nagar. Later on, the workmen of the said Division including him
(petitioner) were put under the control of the newly created HPPWD B&R Division, Joginder
Nagar. The new Division came into existence in the month of January, 2004. From the date of his
initial engagement up-to 31.8.2007, the respondent/department gave him the fictional breaks from
time to time. Muster roll for 15 days in a month used to be issued in his (petitioner’s) name despite
the fact that the work for the entire month was available with the respondent/department. The
persons junior to him (petitioner) working in the same category were allowed to complete 240 days
of work in a calendar year by the respondent/department. The names of the juniors are S/Sh. Dalip
Singh and Gautam Singh etc. The juniors have also been regularized. The respondent stopped
granting the artificial breaks to him (petitioner) w.e.f. 01.9.2007. After that, he was allowed to
complete 240 days of work in each and every calendar year of his employment. The fictional
breaks were given by the respondent arbitrarily. He has been discriminated. The work for which his
services were engaged is of permanent nature and is still continuing. From 01.01.2000 to
31.8.2007, he requested the respondent time and again to stop giving him the fictional breaks, but
in vain. During the break period, he remained without work and could not get the employment
anywhere else despite the best efforts. He is entitled to the seniority for the break period. This
Court/Tribunal has already decided a similar matter i.e. Reference No.110/2006 titled as General
Secretary vs. Executive Engineer, HPPWD per Award dated 02.11.2010 in favour of the workmen.
The act and conduct of the respondent is illegal and unjustified. It is also violative of Sections 25-F,
25-G, 25-H and other provisions of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for
short).
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:—
“the claim petition of the petitioner may kindly be allowed and he be given the benefit of
seniority for the period of fictional breaks alongwith back wages, he be regularized with
other consequential service benefits or any other relief, to which this Hon’ble Court deems
the petitioner fit under the facts and circumstances stated supra may also be granted in
favour of the petitioner and against the respondent HPPWD and the reference may kindly be
allowed in favour of the petitioner with cost in the interest of justice and justice be done”.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been taken to the
effect that the claim petition is not maintainable since no legal or fundamental right of the petitioner
has been infringed. The State of H.P. and the Executive Engineer, National Highway Division,
HPPWD, Joginder Nagar are necessary parties to the case. They have not been joined as parties to
the lis. The petition is hit by the vice of delay and laches.
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On merits, it has been owned that the services of the petitioner were engaged as a daily
wager by the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar in the
month of August, 1999. His (respondent’s) office was created in the month of January, 2004 vide
notification dated 9th December, 2003 issued by the Government. The office started functioning
w.e.f. 2nd January, 2004. After creation of his (respondent’s) office, the petitioner and some other
workmen were transferred from the HPPWD, National Highway Division, Joginder Nagar to the
HPPWD (B&R) Division Joginder Nagar. The claim of the petitioner prior to 01.1.2004 relates to
the office of the Executive Engineer, National Highway Division, HPPWD, Joginder Nagar, who
has not been joined as a party to the case. No fictional breaks were provided to the petitioner as
alleged. The work was made available to the petitioner on his verbal requests from time to time as
per the availability of the funds and requirement. At the time of engaging the services of the
petitioner, he was duly informed that he has been engaged for a particular period of 10-15 or 20
days and his (respondent’s) office is not in a position to provide the work to him (petitioner) for the
whole month. The mandays chart of the petitioner is annexure R2. Almost all the workmen, whose
names have been disclosed by the petitioner, are senior to him. The petitioner has not been
discriminated. At the time of the disengagement of the workmen due to non availability of the work
and the funds, the principle of ‘last come first go’ was strictly followed. The petitioner is not
entitled to any protection under the Act. Now he is working continuously with him (respondent).
The instant industrial dispute has been raised by the petitioner at a belated stage. He did not lodge
any protest earlier at any point of time. During the period, the petitioner remained out of the job, he
was gainfully employed.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 15.11.2013, following issues were struck:
1.
Whether time to time termination of the services/giving breaks in service to the
petitioner by the respondent from the year 2000 to 31.08.2007 is/was illegal and
unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form? ..OPR.
3.
Whether the claim petition is bad for non-joinder of the necessary parties as alleged.
If so, its effect?
..OPR.
4.
Whether the petition is hit by the vice of delay and laches 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
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: No
7463
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Issue No. 4
: No
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8.
Shri Sant Ram (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 admitted that his services were initially engaged in HPPWD,
National Highway Division, Joginder Nagar. HPPWD (B&R) Division, Joginder Nagar was created
in the month of January, 2004. He denied that at the time of issuance of the muster rolls, it was
conveyed to him and the other workmen that because of the non availability of the budget, their
services are being engaged for 10-15 or 20 days only. He denied that at the time of receiving the
payment or issuance of the muster rolls, he did not raise any objection regarding providing the
artificial breaks. He also denied that the instant industrial dispute has been raised by him at a
belated stage.
9.
Conversely, Shri Pawan Kumar Sharma, Executive Engineer, (D) Circle Joginder
Nagar, HPPWD Joginder Nagar, who is also holding the charge of B&R Division Joginder Nagar
(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 the respondent.
In the cross-examination, he admitted that two Sub Divisions i.e. Joginder Nagar (B&R)
and Ladbharol (B&R) were under National Highway Division, Joginder Nagar. The budget for
HPPWD Sub Division (B&R), Joginder Nagar was provided by the Himachal Pradesh
Government. The budget for the execution of the works carried out by the National Highway
Division was provided by the Government of India. He admitted that from the very beginning, the
petitioner served in B&R Sub Division, Joginder Nagar and is serving the said Sub Division even
now. He admitted that the workmen whose names find mention in Ex. RW1/E were engaged after
the employment of the petitioner and they completed 240 days of work earlier to him. No notice
regarding absence from duties was ever given to the petitioner. He admitted that the persons junior
to the petitioner have already been regularized. The nature of work being done by the petitioner and
his juniors was the same. He denied that he has given a phoney statement.
10.
Ex. RW1/B is the copy of a notification dated 9th December, 2003 issued by the
Public Works Department, Govt. of Himachal Pradesh. It depicts that the National Highways set up
was restructured.
11.
Ex. RW1/C is the copy of an office order dated 2nd January, 2004 issued by the
respondent. It unfolds that the newly created B&R Division, HPPWD, Joginder Nagar became
functional w.e.f. 2nd January, 2004 (forenoon).
12.
Ex. RW1/D is the mandays chart relating to the petitioner.
13.
Ex. RW1/E is the mandays chart/year-wise working days details in respect of the
daily waged beldars namely Shri Dalip Singh and nine others.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily waged beldar and he is working continuously. The mandays chart Ex. RW1/D unfolds
7464
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that the petitioner was initially employed in the month of August, 1999. The respondent has not
pleaded a single word to the effect that the initial appointment of the petitioner was made against
the Rules or in violation of the prescribed procedure.
15.
It is an admitted fact that the services of the petitioner were initially engaged by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar. From the statement
made by the respondent (RW1), it can be gathered that two B&R Sub Divisions i.e. Joginder Nagar
and Ladbharol were working under National Highway Division, Joginder Nagar. From the very
beginning, the petitioner is serving HPPWD (B&R) Sub Division, Joginder Nagar, which
admittedly came under the control of the respondent with the creation of new B&R Division at
Joginder Nagar in the year 2004. Therefore, it can be safely said that from day one, the petitioner is
an employee of B&R Division and not the National Highway Division at Joginder Nagar.
16.
The mandays chart Ex. RW1/D clarifies that from the month of January, 2000 to
31.8.2007, work for the entire month was not provided to the petitioner by the respondent. The
muster rolls for 10-20 days in a month were issued in the name of the petitioner. If the services of
the petitioner used to be engaged for 10-20 days every month due to the non availability of the
budget and work, then why the persons junior to him (whose names figure in the list Ex. RW1/E)
were provided the work for 240 days or more by the respondent? The reasons to that effect being
obscure go to show that the respondent is not speaking the truth. 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.
17.
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 January, 2000 to 31st August, 2007 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).
18.
This issue is decided in favour of the petitioner and against the respondent.
ISSUE NO. 2
19.
Not pressed.
ISSUE NO. 3
20.
Taking into account my findings on issue No.1 above, it is held that the State of H.P.
and Executive Engineer, HPPWD, National Highway Division, Joginder Nagar are not necessary
parties to the case. They may be proper parties.
21.
This issue too is decided in favour of the petitioner and against the respondent.
ISSUE NO. 4
22.
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
7465
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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.
23.
While testifying in the Court as PW1, the petitioner has given his age as 44 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.
24.
This issue is also decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 5)
25.
As a sequel to my findings on the various issues, the instant claim petition succeeds
in part and the same is partly allowed. The breaks given by the respondent to the petitioner up-to
31.8.2007 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 January, 2000 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.
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 9th day of January, 2014.
(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.
: 400/2009
Date of Institution : 18.7.2009
Date of Decision
: 21.01.2014
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Shri Ravi Dutt s/o Shri Som Dutt, r/o Village Tariha, Tehsil Bhatiyat, Distt. Chamba (H.P.)
..Petitioner.
Versus
The Executive Engineer, I.& P.H. 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. Bhuvnesh Awasthi, Dy. D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Sh. Ravi Dutt S/O Shri Som Dutt, by The Executive
Engineer, IPH Division Dalhousie, Distt. Chamba (H.P.) w.e.f. 30.11.2000 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 by the respondent in the year 1988. He worked
for more than 240 days from the year 1988 to the year 1991. Since he (petitioner) is a matriculate,
from the month of December, 1996 to November, 2000, the services of the works inspector were
taken from him. He worked as a works inspector from the year 1997 to November, 2000 as well as
completed more than 240 days of work in each and every calendar year of his engagement. In the
month of November, 2000 to his utter surprise, he and the other workmen received the termination
notices from the respondent. Such notices were issued without assigning any reason due to the
political considerations. At the time of his termination, the persons junior to him were retained in
service by the respondent. S/Shri Rajinder Singh and Madhi Ram etc. were also issued
retrenchment notices by the respondent. However, they were allowed to continue in service. The
names of the juniors, who were retained in service by the respondent are S/Sh. Hans Raj and Balak
Ram etc. Not only this, after the disengagement of his services, new/fresh hands were recruited by
the respondent. The names of the newly appointed persons are S/Shri Pawan Singh and Chaman
Singh etc. He was not given an opportunity of re-employment. 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 Industrial Disputes
Act, 1947 (14 of 1947, ‘the Act’ for short).
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:—
“the termination/retrenchment of the claimant by the employer/opposite party may kindly
be declared null and void and he may be granted all consequential benefits as also the other
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allowances, salary besides being other benefits and regularizations after 10 years of service
with seniority and back wages along with interest @ 18% per annum available under law,
and other relief (s) to which claimant may be found entitled to, in the peculiar facts
circumstances of the case and justice be done”.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been 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 denied that the services of the petitioner were initially engaged as a
daily waged beldar in the year 1988. However, it has been pleaded that the petitioner was appointed
as a daily rated works inspector in the month of December, 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 services of the petitioner
and 363 other workers (out of which six workmen fell in the category of works inspector) were
disengaged. At the time of the disengagement of the services of the petitioner w.e.f. 30.11.2000, the
principle of ‘last come first go’ was strictly adhered to. 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.
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.
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6.
Relief.
6.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
7.
For the reasons detailed here under, my findings on the above issues are as
follows:—
Issue No. 1
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: No
Issue No. 4
: Not pressed
Issue No. 5
: Not pressed
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
8.
Shri Ravi Dutt (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 admitted that the mandays chart Ex. R1 produced by the
respondent is correct. He does not know that in the month of October/November, 2000, the
availability of the 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 termination
notices were served upon the workmen by the respondent. Volunteered, no notice was received by
him. He denied that the retrenchment compensation was paid to him. He admitted that Smt. Sodha
Devi and Smt. Lata Devi were employed on compassionate grounds after the death of their
husbands. He admitted that Shri Santosh Kumar was the works inspector. He has not been re-
employed and his matter is pending before the Hon’ble High Court. He denied that no person junior
to him is serving the respondent/department and 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.
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 available.
10.
Ex. R-1 is the mandays chart relating to the petitioner.
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1.
Ext. R-2 is the copy of notice dated 25.10.2000 served upon the petitioner by the
respondent under Section 25-F of the Act. It depicts that the services of the petitioner were
disengaged w.e.f. 30.11.2000 (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 25.10.2k worth Rs. 3,900/-
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 works inspectors, 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.
The version of the petitioner is that his services were initially engaged as a daily
waged beldar by the respondent in the year 1988. Being a matriculate he served as a works
inspector with the respondent/department from December, 1996 to November, 2000. The
respondent has pleaded that the petitioner was directly appointed as a daily rated works inspector in
the month of December, 1996. His services were never engaged in the year 1988 as claimed. The
petitioner (PW1) in his cross-examination admitted that the mandays chart Ex. R1 produced by the
respondent is correct. Its perusal discloses that the services of the petitioner were engaged by the
respondent in the month of December, 1996 for the first time as a daily waged works inspector. The
claimant/petitioner has not placed/exhibited on the file any document to show that he was
appointed by the respondent in the year 1988 as claimed.
18.
At this stage, I will like to highlight that the post of works inspector is class-III (non-
gazetted). Recruitment and Promotion Rules pertaining to the post of works inspector have been
framed by the Department of Irrigation and Public Health, Govt. of Himachal Pradesh. As per the
R&P Rules for being directly appointed as a works inspector, a person should be a matriculate from
the recognized Board/University. He should also possess the knowledge of customs, manners and
dialects of Himachal Pradesh besides being suitable for being appointed in the peculiar conditions
prevailing in the Pradesh. It is not the case of the petitioner that he held all the requisite
qualifications for being directly recruited as a works inspector. Rather, in para 1 of the claim
petition, it has been pleaded that he is matric pass. Faced with this situation, the ld. counsel for the
petitioner/workman urged that this Court/Tribunal may order the re-engagement of the services of
the petitioner as a beldar (instead of the works inspector).
19.
It is an admitted fact that the services of the petitioner were terminated by the
respondent w.e.f. 30.11.2000 (afternoon) after issuing the notice Ex. R2. The version of the
respondent is that the services of the petitioner and 363 other 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 works inspectors who remained on rolls of the respondent upto
31.12.2000. The name of the petitioner figures at serial No. 21 of the list.
20.
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,
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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 December, 1996. There is nothing on the record to show that the deceased husbands of
Smt. 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.
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 or re-engaging the
persons junior to the petitioner, an opportunity of re-employment was afforded to him (petitioner).
22.
Such being the situation, I have no hesitation to conclude that the respondent has
contravened the provisions of Section 25-G 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,
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.
25.
While testifying in the Court as PW1, the petitioner has given his age as 48 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. Otherwise too, during his cross-examination, the petitioner admitted that
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nowadays he earns his livelihood by doing the days’ drudgery privately. 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 back wages.
26.
This issue is also decided in favour of the petitioner and against the respondent.
ISSUES NO. 2, 4 AND 5
27.
Not pressed.
RELIEF (ISSUE NO. 6)
28.
As a sequel to my findings on the issues No.1 and 3 above, the instant claim petition
succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and
quashed. The respondent is directed to re-engage the petitioner as a beldar forthwith. He shall be
entitled to the continuity and seniority in service from the date of his illegal termination i.e.
30/11/2000 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 Government of Himachal
Pradesh 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.
29.
The reference is answered in the aforesaid terms.
30.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
31.
File after due completion be consigned to the Record Room.
Announced in the open Court today this 21st day of January, 2014.
(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.
: 30/2013
Date of Institution : 05.04.2013
Date of Decision
: 22.01.2014
Smt. Savitri Devi w/o Shri Kashmir Singh, r/o VPO Giun, Tehsil Sarkaghat, Distt. Mandi,
H.P.
..Petitioner.
Versus
The Executive Engineer, HPPWD Division Dharampur, H.P.
..Respondent.
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Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Raj Kumar Sharma, Adv.
For the Respondent : Sh. Bhuvnesh Awasthi, Dy.D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Smt. Savitri Devi W/O Sh. Kashmir Singh, VPO
Giun, Tehsil Sarkaghat, Distt. Mandi by the Executive Engineer, HPPWD Division
Dharampur, H.P. during the years, 1999 and 2002 without complying the provisions of the
Industrial Disputes Act, 1947 is legal and justified? If not, what amount of back wages,
seniority, past service benefits and compensation the above aggrieved workman is entitled
to from the above employer?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that her
services were engaged as a daily rated beldar by the respondent on 1st July, 1998. She continuously
worked as such up-to 30.9.1999 as well as completed 240 days of work in a block of 12 calendar
months prior to the date of her termination. On 30th September, 1999, her services were terminated
by the respondent. Before the disengagement of her services, the procedure prescribed by law was
not adopted by the respondent. The persons junior to her namely S/Shri Raju Ram and Prem Singh
etc. were retained in service by the respondent. The latter failed to abide by the principle of ‘last
come first go’. The services of the persons junior to her have already been regularized by the
respondent/department. Not only this, 319 other workmen junior to her have been re-engaged by
the respondent as per the orders of this Court by ignoring her claim/seniority. Against the
retrenchment order, she (petitioner) had preferred Original Application (M) No. 385/1999 before
the erstwhile Hon’ble Himachal Pradesh Administrative Tribunal. Such Original Application was
allowed by the Hon’ble Administrative Tribunal. The respondent was directed to re-employ her in
the same capacity and at the same place where she was working prior to her termination. Against
the order/judgment of the Hon’ble Administrative Tribunal, the respondent filed CWP No. 1310 of
2001 before the Hon’ble High Court of Himachal Pradesh. The directions issued by the Hon’ble
Administrative Tribunal were not implemented by the respondent due to the filing of the CWP
before the Hon’ble High Court of Himachal Pradesh. It was held by the Hon’ble High Court that
the Administrative Tribunal had no jurisdiction to deal with the matter. A demand notice was
served upon the respondent by her. Conciliation proceedings were initiated by the Labour Officer-
cum-Conciliation Officer, Mandi, but in vain. The act and conduct of the respondent is illegal and
unjustified. It is also violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial
Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
As such, she (petitioner) prays that the termination order dated 30.9.1999 passed by the
respondent be upset. The respondent be directed to reinstate her in service with all consequential
benefits including the seniority, continuity in service and payment of the back wages etc.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been raised to the
effect that the claim petition is not maintainable since other efficacious remedies at the first
instance are available to the petitioner. The petition is hit by the vice of delay and laches. The
petitioner has not come to the Court with clean hands. She has suppressed the material facts from
the Court. The petitioner is estopped from filing the claim petition by her act and conduct.
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On merits, it has been owned that the services of the petitioner were engaged as a daily
waged beldar on 01.7.1998 and she worked as such up-to 30.9.1999. It has been admitted that the
petitioner completed 240 days of work in a block of 12 calendar months preceding the date of her
termination. HPPWD Division, Dharampur, was opened in the month of November, 1998. Earlier,
the petitioner worked in Sarkaghat Division of the HPPWD. After opening of the new Division the
petitioner was transferred from Sarkaghat Division to Dharampur Division. The services of the
petitioner were never terminated as alleged. Actually, on 30.9.1999, the petitioner left the job
voluntarily. She never reported for duty thereafter. Daily waged labourers were retrenched during
the month of February, 2004 and on 07.7.2005. The services of the petitioner were not disengaged
in the years 2004 or 2005 since she had abandoned the job way back in the year 1999. The
retrenched workmen have been re-engaged as per the orders passed by this Court, Hon’ble High
Court of Himachal Pradesh and the Chief Engineer, HPPWD Central Zone, Mandi. The services of
the workmen have been regularized as per the policy of the State. Since the petitioner left the job
willingly, the question of violation of any provision of the Act does not arise.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed with costs.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 30.7.2013, following issues were struck:—
1.
Whether the termination of the services of the petitioner by the respondent in the
year 1999 is illegal and unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form?
..OPR.
3.
Whether the petitioner has not approached the Court with clean hands as alleged. If
so, its effect?
..OPR.
4.
Whether the claim petition suffers from the vice of delay and laches as alleged. If so,
its effect?
..OPR.
5.
Whether the petitioner has suppressed the true and material facts from the Court as
alleged. If so, its effect?
..OPR.
6.
Whether the petitioner is estopped from filing the claim petition by her act and
conduct as alleged. If so, its effect?
..OPR.
7.
Relief.
6.
At this stage, I will like to highlight that on 30.7.2013 itself, the below given order
was also passed by this Court:—
“Neither any rejoinder filed nor intended to be filed. Ld. A.R. and csl. for the petitioner
state at bar that their client in fact served with the respondent/department upto 30-09-1999
only and they do not press the alleged termination of the services of the petitioner by the
respondent/department in the year 2002. The reply submitted by the respondent also
indicates that as per record, the petitioner served only upto 30th Sept., 1999”.
7.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
8.
For the reasons detailed here under, my findings on the above issues are as
follows:—
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Issue No. 1
: Yes
Issue No. 2
: Not pressed
Issue No. 3
: Not pressed
Issue No. 4
: No
Issue No. 5
: Not pressed
Issue No. 6
: Not pressed
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9.
The petitioner Smt. Savitri Devi stepped into the witness box as PW1. In her
affidavit Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of
the petition/statement of claim in its entirety.
In the cross-examination, she denied that on 30.9.1999, she left the job of her own. She also
denied that no person junior to her was retained in service by the respondent and she has instituted
a phoney petition.
10.
Conversely, Sh. Anil Sangrai, Executive Engineer, HPPWD, Division Dharampur
(respondent) testified as RW1. He corroborated on oath the contents of the reply filed by him.
In his cross-examination, he admitted that all the workmen whose names have been
disclosed in paras 3 and 4 of the proof affidavit Ex. PW1/A are junior to the petitioner. They are
still working under him and their services have been regularized. He denied that the petitioner
worked only up-to 30.9.1999 and the mandays chart produced by him has been falsely prepared. No
notice regarding absence from duty was ever given to the petitioner.
11.
Ex. PW1/B is the seniority list/year-wise mandays chart in respect of Shri Shashi
Kant s/o Shri Bihari Lal, a daily wager, working under the respondent. It depicts that Shri Shashi
Kant was employed in the month of January, 2000 i.e. after the disengagement of the services of
the petitioner.
12.
Ex. PW1/C is the copy of the judgment dated December 22, 2009 rendered by the
Hon’ble High Court of Himachal Pradesh in CWP No.1310 of 2001 titled as State of Himachal
Pradesh versus Smt. Savitri Devi and three others. It unfolds that the order dated 07.3.2001 passed
by the Hon’ble Administrative Tribunal was set aside by the Hon’ble High Court on the ground that
the Hon’ble Tribunal had no jurisdiction to deal with the matter. The petitioner/workman was given
the liberty to initiate appropriate action/proceedings under the Act.
13.
Ex. RW1/A is the mandays chart relating to the petitioner.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily rated beldar on 1st July, 1998 and she worked as such up-to 30.9.1999. The
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assertion/statement of the respondent (RW1) to the effect that the petitioner even served the
department after 30.9.1999 being beyond the pleadings cannot be read.
15.
The version of the petitioner is that on 30.9.1999, her services were wrongly and
illegally terminated by the respondent. While denying the said fact, the respondent has pleaded that
the petitioner abandoned the job of her own accord and free volition.
16.
It is well known that the abandonment has to be proved like any other fact by the
respondent/employer. Simply because a workman fails to report for duty, it cannot be presumed
that he/she has left/abandoned the job. There is nothing on the record to show that a notice was
served upon the petitioner by the respondent calling upon her to resume the duties after she
allegedly left the same. Absence from duty is serious misconduct. Admittedly, no disciplinary
proceedings were initiated against the petitioner by the respondent for her alleged willful absence
from duty. The plea of abandonment put forth by the respondent is not established.
17.
The mandays chart Ex. RW1/A unfolds that in the year 1999 i.e. up-to 30.9.1999,
the petitioner had served the respondent/department for 246 days.
18.
Section 25-F of the Act postulates as under:—
“25-F. Conditions precedent to retrenchment of workmen.—No workman employed in
any industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until—
(a) the workman has been given one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired, or the workman has been paid in lieu of
such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment compensation which shall be
equivalent to fifteen days’ average pay for every completed year of continuous service or
any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such
authority as may be specified by the appropriate Government by notification in the Official
Gazette.”
19.
There is nothing on the record to show that before the disengagement of the services
of the petitioner, the provisions of the above quoted Section were complied with by the respondent.
20.
As already mentioned, Ex. PW1/B is the mandays chart pertaining to Shri Shashi
Kant. Its perusal discloses that his services were initially engaged by the respondent in the month of
January, 2000 i.e. after the termination of the services of the petitioner. There is not even an iota of
evidence on the file to prove that before employing Shri Shashi Kant, an opportunity of re-
employment as envisaged under Section 25-H of the Act was afforded to the petitioner by the
respondent.
21.
Not only this, Shri Anil Sangrai (RW1) in his cross-examination admitted that the
persons junior to the petitioner are still working under him. The services of the juniors have also
been regularized. This indicates that the respondent failed to abide by the principle of ‘last come
first go’. His action contravenes the provisions of Section 25-G of the Act.
22.
Such being the situation, I have no hesitation to conclude that the termination of the
services of the petitioner by the respondent on 30.9.1999 is illegal and unjustified.
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23.
This issue is decided in favour of the petitioner and against the respondent.
ISSUES NO. 2, 3, 5 AND 6
24.
Not pressed.
ISSUE NO. 4
25.
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.
26.
In Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota versus Mohan Lal, Civil Appeal No. 6795 of 2013, decided on 16th August, 2013, by the
Hon’ble Supreme Court of India, the issue regarding delay in raising the industrial dispute by the
workman was discussed. Paras 19 and 20 of the judgment read thus:—
“19. In a subsequent decision in Balbir Singh, this Court observed that Ajaib Singh was
confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea
of delay was raised before the Industrial Tribunal but we would emphasize the passage from
Balbir Singh where it was said: “Whether relief to the workman should be denied on the
ground of delay or it should be appropriately moulded is at the discretion of the Tribunal
depending on the facts and circumstances of the case. No doubt the discretion is to be
exercised judicially.
20. We are clearly of the view that though Limitation Act, 1963 is not applicable to the
reference made under the I.D. Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has been raised by the other side.
The legal position laid down by this Court in Gitam Singh that before exercising its judicial
discretion, the Labour Court has to keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of service, the ground on which
termination has been set aside and the delay in raising industrial dispute before grant of
relief in an industrial dispute, must be invariably followed.”
27. In Mohan Lal’s case (cited supra), the workman/petitioner worked as a work-charged
employee for 286 days. The industrial dispute was raised by him after six years of the termination.
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The Hon’ble Apex Court opined that the interest of justice will be sub-served if in lieu of
reinstatement, the compensation of Rs.1,00,000/- (one lac) is paid to the workman by the employer.
28.
Now comes the all important question as to what relief should be awarded/granted to
the petitioner?
29.
At the cost of reiteration, I will like to add that the petitioner served the respondent
in the years 1998 and 1999 only. The retrenchment of her services has been held to be bad in the
eyes of law in view of the provisions contained in Sections 25-F, 25-G and 25-H of the Act.
30.
Against the termination order dated 30.9.1999 the claimant/petitioner had preferred
O.A. (M) No.385/1999 before the Hon’ble Administrative Tribunal. Such Original Application was
disposed of by the Hon’ble Administrative Tribunal per order/judgment delivered on 07.3.2001.
The Original Application was allowed by the Hon’ble Tribunal. Against the judgment/order dated
March 7, 2001 of the Hon’ble Administrative Tribunal, the respondent/State of Himachal Pradesh
preferred CWP No.1310 of 2001 before the Hon’ble High Court of Himachal Pradesh. The said
CWP was decided by the Hon’ble High Court vide judgment dated 22.12.2009, the copy of which
is Ex. PW1/C. While allowing the CWP, it was held by the Hon’ble High Court that the Hon’ble
Administrative Tribunal had no jurisdiction to entertain the Original Application. The order of the
Hon’ble Administrative Tribunal was set aside. The Hon’ble High Court opined:
“Keeping in view the fact that the respondents as workman employed in a lowly position
and the legal position was not clear at the time when the Original Application was filed and
disposed of by the Tribunal, we direct that the petitioner, if so advised, may take appropriate
action/proceedings under the Industrial Disputes Act. In case, they do so within three
months from today, the same shall not be defeated on the ground of the delay or limitation
since they were prosecuting the proceeding before the Tribunal and this Court”.
31.
The petitioner has placed on the record, the copy of the demand notice dated
26.9.2009 served upon the respondent by her under Section 2-A of the Act. The demand notice was
in-fact given by the petitioner before the disposal of the CWP by the Hon’ble High Court.
32.
The termination in question took place on 30.9.1999. The same was challenged by
the petitioner in the year 1999 itself by instituting Original Application No.385/1999. This shows
that the claimant/petitioner raised the dispute immediately after the retrenchment of her services.
Her claim is not liable to be defeated in view of the judgment dated 22.12.2009 (Ex. PW1/C)
pronounced by the Hon’ble High Court of Himachal Pradesh. Otherwise too, in the reply, the
respondent has admitted that the persons junior to the petitioner have already been re-engaged in
obedience to the orders passed by the Hon’ble High Court of Himachal Pradesh and this
Court/Tribunal.
33.
While testifying in the Court as PW1, the petitioner has given her age as 44 years. It
is well known that a young lady like the petitioner will not sit at home during the period she is/was
out of the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. In the statement of claim/demand, the petitioner
has not whispered a single word to the effect that she is/was not gainfully employed. She is thus not
entitled to the back wages.
34.
Taking into consideration the trite laid down in Mohan Lal’s case (cited supra) and
all other relevant factors (narrated above), I feel that the petitioner is entitled to the reinstatement of
her services. She is also entitled to the seniority and continuity in service.
35.
This issue too is decided in favour of the petitioner and against the respondent.
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RELIEF (ISSUE NO. 7)
36.
As a sequel to my findings on the issues No.1 and 4, the instant claim petition
succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and
quashed. The respondent is directed to re-engage the petitioner forthwith. She shall be entitled to
the seniority and continuity in service from the date of her termination i.e. 30.9.1999 except back
wages. The respondent is also directed to consider the case of the petitioner for regularization of
her 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, she
(petitioner) shall be entitled to the regularization from the date/month of the regularization of the
services of her junior(s). Parties to bear their own costs.
37.
Before parting with this matter, I will like to add that the statement made by the
respondent (RW1) and the evidence adduced by him are in-fact beyond the pleadings and contrary
to the reply. In the reply, the respondent admitted that the services of the petitioner were engaged
on 01.7.1998. In the mandays chart Ex. RW1/A, the date of joining of the petitioner is recorded as
01.8.1998. Further, in the reply, the respondent pleaded that the petitioner left the job on 30.9.1999
and, thereafter, never reported for duty. Strangely, in the mandays chart Ex. RW1/A, it has been
mentioned that the petitioner served the respondent/department in the years 2001 and 2002 as well.
This amply demonstrates that either the record is not being properly maintained in the office or
some mischief is being committed by fudging the record. Such mischief can be like preparing false
muster rolls of the workmen showing that they worked in a particular year (in which they never
worked) and were paid the wages. The matter being serious, this Court sincerely hopes and trusts
that the respondent will take corrective steps at his end.
38.
The reference is answered in the aforesaid terms.
39.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
40.
File after due completion be consigned to the Record Room.
Announced in the open Court today this 22nd day of January, 2014.
(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.
: 29/2013
Date of Institution : 05.04.2013
Date of Decision
: 22.01.2014
Smt. Soma Devi w/o Shri Ram Singh, r/o VPO Guin, Tehsil Sarkaghat, Distt. Mandi, H.P.
..Petitioner.
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Versus
The Executive Engineer, HPPWD Division Dharampur, H.P.
..Respondent.
Reference under Section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Raj Kumar Sharma, Adv.
For the Respondent : Sh. Bhuvnesh Awasthi, Dy.D.A.
AWARD
The below given reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Smt. Soma Devi W/O Sh. Ram Singh, VPO Giun,
Tehsil Sarkaghat, Distt. Mandi by the Executive Engineer, HPPWD Division Dharampur,
H.P. during the years, 1999 and 2002 without complying the provisions of the Industrial
Disputes Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past
service benefits and compensation the above aggrieved workman is entitled to from the
above employer?”
2.
The case of the petitioner (as set out in the statement of claim/demand) is that her
services were engaged as a daily rated beldar by the respondent on 1st July, 1998. She continuously
worked as such up-to 30.9.1999 as well as completed 240 days of work in a block of 12 calendar
months prior to the date of her termination. On 30th September, 1999, her services were terminated
by the respondent. Before the disengagement of her services, the procedure prescribed by law was
not adopted by the respondent. The persons junior to her namely S/Shri Raju Ram and Prem Singh
etc. were retained in service by the respondent. The latter failed to abide by the principle of ‘last
come first go’. The services of the persons junior to her have already been regularized by the
respondent/department. Not only this, 319 other workmen junior to her have been re-engaged by
the respondent as per the orders of this Court by ignoring her claim/seniority. Against the
retrenchment order, she (petitioner) had preferred Original Application (M) No. 385/1999 before
the erstwhile Hon’ble Himachal Pradesh Administrative Tribunal. Such Original Application was
allowed by the Hon’ble Administrative Tribunal. The respondent was directed to re-employ her in
the same capacity and at the same place where she was working prior to her termination. Against
the order/judgment of the Hon’ble Administrative Tribunal, the respondent filed CWP No. 1310 of
2001 before the Hon’ble High Court of Himachal Pradesh. The directions issued by the Hon’ble
Administrative Tribunal were not implemented by the respondent due to the filing of the CWP
before the Hon’ble High Court of Himachal Pradesh. It was held by the Hon’ble High Court that
the Administrative Tribunal had no jurisdiction to deal with the matter. A demand notice was
served upon the respondent by her. Conciliation proceedings were initiated by the Labour Officer-
cum-Conciliation Officer, Mandi, but in vain. The act and conduct of the respondent is illegal and
unjustified. It is also violative of the provisions of Sections 25-F, 25-G and 25-H of the Industrial
Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
As such, she (petitioner) prays that the termination order dated 30.9.1999 passed by the
respondent be upset. The respondent be directed to reinstate her in service with all consequential
benefits including the seniority, continuity in service and payment of the back wages etc.
3.
On notice, the respondent appeared. He filed detailed reply controverting the
averments made in the petition/statement of claim. Preliminary objections have been raised to the
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effect that the claim petition is not maintainable since other efficacious remedies at the first
instance are available to the petitioner. The petition is hit by the vice of delay and laches. The
petitioner has not come to the Court with clean hands. She has suppressed the material facts from
the Court. The petitioner is estopped from filing the claim petition by her act and conduct.
On merits, it has been owned that the services of the petitioner were engaged as a daily
waged beldar on 01.7.1998 and she worked as such up-to 30.9.1999. It has been admitted that the
petitioner completed 240 days of work in a block of 12 calendar months preceding the date of her
termination. HPPWD Division, Dharampur, was opened in the month of November, 1998. Earlier,
the petitioner worked in Sarkaghat Division of the HPPWD. After opening of the new Division, the
petitioner was transferred from Sarkaghat Division to Dharampur Division. The services of the
petitioner were never terminated as alleged. Actually, on 30.9.1999, the petitioner left the job
voluntarily. She never reported for duty thereafter. Daily waged labourers were retrenched during
the month of February, 2004 and on 07.7.2005. The services of the petitioner were not disengaged
in the years 2004 or 2005 since she had abandoned the job way back in the year 1999. The
retrenched workmen have been re-engaged as per the orders passed by this Court, Hon’ble High
Court of Himachal Pradesh and the Chief Engineer, HPPWD, Central Zone, Mandi. The services of
the workmen have been regularized as per the policy of the State. Since the petitioner left the job
willingly, the question of violation of any provision of the Act does not arise.
In these circumstances, the respondent prays that the petition in hand being meritless be
dismissed with costs.
4.
No rejoinder has been filed by the petitioner.
5.
Per order dated 30.7.2013, following issues were struck:—
1.
Whether the termination of the services of the petitioner by the respondent in the
year 1999 is illegal and unjustified as alleged?
..OPP.
2.
Whether the claim petition is not maintainable in the present form?
..OPR.
3.
Whether the petitioner has not approached the Court with clean hands as alleged. If
so, its effect?
..OPR.
4.
Whether the claim petition suffers from the vice of delay and laches as alleged. If so,
its effect?
..OPR.
5.
Whether the petitioner has suppressed the true and material facts from the Court as
alleged. If so, its effect?
..OPR.
6.
Whether the petitioner is estopped from filing the claim petition by her act and
conduct as alleged. If so, its effect?
..OPR.
7.
Relief.
6.
At this stage, I will like to highlight that on 30.7.2013 itself the below given order
was also passed by this Court:—
“Neither any rejoinder filed nor intended to be filed. Ld. A.R. and csl. for the petitioner
state at bar that their client in fact served with the respondent/department upto 30-09-1999
only and they do not press the alleged termination of the services of the petitioner by the
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respondent/department in the year 2002. The reply submitted by the respondent also
indicates that as per record, the petitioner served only upto 30th Sept., 1999”.
7.
I have heard the ld. counsel/AR for the parties and have gone through the case file.
8.
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
Issue No. 4
: No
Issue No. 5
: Not pressed
Issue No. 6
: Not pressed
Relief.
: Claim petition allowed in part vide operative portion of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9.
The petitioner Smt. Soma Devi stepped into the witness box as PW1. In her affidavit
Ex. PW1/A submitted under Order 18 Rule 4 CPC, she reiterated on oath the contents of the
petition/statement of claim in its entirety.
In the cross-examination, she denied that on 30.9.1999, she left the job of her own. She also
denied that no person junior to her was retained in service by the respondent and she has instituted
a phoney petition.
10.
Conversely, Sh. Anil Sangrai, Executive Engineer, HPPWD, Division Dharampur
(respondent) testified as RW1. He corroborated on oath the contents of the reply filed by him.
In his cross-examination, he admitted that all the workmen whose names have been
disclosed in paras 3 and 4 of the proof affidavit Ex. PW1/A are junior to the petitioner. They are
still working under him and their services have been regularized. He denied that the petitioner
worked only up-to 30.9.1999 and the mandays chart produced by him has been falsely prepared. No
notice regarding absence from duty was ever given to the petitioner.
11.
Ex. PW1/B is the seniority list/year-wise mandays chart in respect of Shri Shashi
Kant s/o Shri Bihari Lal, a daily wager, working under the respondent. It depicts that Shri Shashi
Kant was employed in the month of January, 2000 i.e. after the disengagement of the services of
the petitioner.
12.
Ex. PW1/C is the copy of the judgment dated December 22, 2009 rendered by the
Hon’ble High Court of Himachal Pradesh in CWP No.1310 of 2001 titled as State of Himachal
Pradesh versus Smt. Savitri Devi and three others. It unfolds that the order dated 07.3.2001 passed
by the Hon’ble Administrative Tribunal was set aside by the Hon’ble High Court on the ground that
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the Hon’ble Tribunal had no jurisdiction to deal with the matter. The petitioner/workman was given
the liberty to initiate appropriate action/proceedings under the Act.
13.
Ex. RW1/A is the mandays chart relating to the petitioner.
14.
It is the admitted case of the parties that the services of the petitioner were engaged
as a daily rated beldar on 1st July, 1998 and she worked as such up-to 30.9.1999. The
assertion/statement of the respondent (RW1) to the effect that the petitioner even served the
department after 30.9.1999 being beyond the pleadings cannot be read.
15.
The version of the petitioner is that on 30.9.1999, her services were wrongly and
illegally terminated by the respondent. While denying the said fact, the respondent has pleaded that
the petitioner abandoned the job of her own accord and free volition.
16.
It is well known that the abandonment has to be proved like any other fact by the
respondent/employer. Simply because a workman fails to report for duty, it cannot be presumed
that he/she has left/abandoned the job. There is nothing on the record to show that a notice was
served upon the petitioner by the respondent calling upon her to resume the duties after she
allegedly left the same. Absence from duty is serious misconduct. Admittedly, no disciplinary
proceedings were initiated against the petitioner by the respondent for her alleged willful absence
from duty. The plea of abandonment put forth by the respondent is not established.
17.
The mandays chart Ex. RW1/A unfolds that in the year 1999 i.e. up-to 30.9.1999,
the petitioner had served the respondent/department for 239 days. However, in the reply, the
respondent/employer has admitted that the petitioner had completed 240 days of work in a block of
12 calendar months preceding the date of her termination.
18.
Section 25-F of the Act postulates as under:—
“25-F. Conditions precedent to retrenchment of workmen.—No workman employed in
any industry who has been in continuous service for not less than one year under an
employer shall be retrenched by that employer until—
(a) the workman has been given one month’s notice in writing indicating the reasons for
retrenchment and the period of notice has expired, or the workman has been paid in lieu of
such notice, wages for the period of the notice:
(b) the workman has been paid, at the time of retrenchment compensation which shall be
equivalent to fifteen days’ average pay for every completed year of continuous service or
any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such
authority as may be specified by the appropriate Government by notification in the Official
Gazette.”
19.
There is nothing on the record to show that before the disengagement of the services
of the petitioner, the provisions of the above quoted Section were complied with by the respondent.
The respondent was duty bound to abide by the mandatory provisions of Section 25-F of the Act in
view of the admissions made by him.
20.
As already mentioned, Ex. PW1/B is the mandays chart pertaining to Shri Shashi
Kant. Its perusal discloses that his services were initially engaged by the respondent in the month of
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January, 2000 i.e. after the termination of the services of the petitioner. There is not even an iota of
evidence on the file to prove that before employing Shri Shashi Kant, an opportunity of re-
employment as envisaged under Section 25-H of the Act was afforded to the petitioner by the
respondent.
21.
Not only this, Shri Anil Sangrai (RW1) in his cross-examination admitted that the
persons junior to the petitioner are still working under him. The services of the juniors have also
been regularized. This indicates that the respondent failed to abide by the principle of ‘last come
first go’. His action contravenes the provisions of Section 25-G of the Act.
22.
Even if, the mandays chart Ex. RW1/A is presumed to be correct, the petitioner
cannot be non suited as for deriving the benefit under Sections 25-G and 25-H of the Act, a
workman need not complete 240 days of work in a block of 12 calendar months anterior to the
date/month of her termination.
23.
Such being the situation, I have no hesitation to conclude that the termination of the
services of the petitioner by the respondent on 30.9.1999 is illegal and unjustified.
24.
This issue is decided in favour of the petitioner and against the respondent.
ISSUES NO. 2, 3, 5 AND 6
25.
Not pressed.
ISSUE NO. 4
26.
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.
27.
In Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-Division,
Kota versus Mohan Lal, Civil Appeal No. 6795 of 2013, decided on 16th August, 2013, by the
Hon’ble Supreme Court of India, the issue regarding delay in raising the industrial dispute by the
workman was discussed. Paras 19 and 20 of the judgment read thus:—
“19. In a subsequent decision in Balbir Singh, this Court observed that Ajaib Singh was
confined to the facts and circumstances of that case. It is true that in Balbir Singh, the plea
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of delay was raised before the Industrial Tribunal but we would emphasize the passage from
Balbir Singh where it was said: “Whether relief to the workman should be denied on the
ground of delay or it should be appropriately moulded is at the discretion of the Tribunal
depending on the facts and circumstances of the case. No doubt the discretion is to be
exercised judicially.
20. We are clearly of the view that though Limitation Act, 1963 is not applicable to the
reference made under the I.D. Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has been raised by the other side.
The legal position laid down by this Court in Gitam Singh that before exercising its judicial
discretion, the Labour Court has to keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of service, the ground on which
termination has been set aside and the delay in raising industrial dispute before grant of
relief in an industrial dispute, must be invariably followed.”
28.
In Mohan Lal’s case (cited supra), the workman/petitioner worked as a work-
charged employee for 286 days. The industrial dispute was raised by him after six years of the
termination. The Hon’ble Apex Court opined that the interest of justice will be sub-served if in lieu
of reinstatement, the compensation of Rs.1,00,000/- (one lac) is paid to the workman by the
employer.
29.
Now comes the all important question as to what relief should be awarded/granted to
the petitioner?
30.
At the cost of reiteration, I will like to add that the petitioner served the respondent
in the years 1998 and 1999 only (as per pleadings of the parties). In accordance with the mandays
chart, she worked with the respondent/department only in the year 1999. The retrenchment of her
services has been held to be bad in the eyes of law in view of the provisions contained in Sections
25-F, 25-G and 25-H of the Act.
31.
Against the termination order dated 30.9.1999, the claimant/petitioner had preferred
O.A. (M) No.385/1999 before the Hon’ble Administrative Tribunal. Such Original Application was
disposed of by the Hon’ble Administrative Tribunal per order/judgment delivered on 07.3.2001.
The Original Application was allowed by the Hon’ble Tribunal. Against the judgment/order dated
March 7, 2001 of the Hon’ble Administrative Tribunal, the respondent/State of Himachal Pradesh
preferred CWP No.1310 of 2001 before the Hon’ble High Court of Himachal Pradesh. The said
CWP was decided by the Hon’ble High Court vide judgment dated 22.12.2009, the copy of which
is Ex. PW1/C. While allowing the CWP, it was held by the Hon’ble High Court that the Hon’ble
Administrative Tribunal had no jurisdiction to entertain the Original Application. The order of the
Hon’ble Administrative Tribunal was set aside. The Hon’ble High Court opined:
“Keeping in view the fact that the respondents as workman employed in a lowly position
and the legal position was not clear at the time when the Original Application was filed and
disposed of by the Tribunal, we direct that the petitioner, if so advised, may take appropriate
action/proceedings under the Industrial Disputes Act. In case, they do so within three
months from today, the same shall not be defeated on the ground of the delay or limitation
since they were prosecuting the proceeding before the Tribunal and this Court”.
32.
The petitioner has placed on the record, the copy of the demand notice dated
03.11.2009 served upon the respondent by her under Section 2-A of the Act. The demand notice
was in-fact given by the petitioner before the disposal of the CWP by the Hon’ble High Court.
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33.
The termination in question took place on 30.9.1999. The same was challenged by
the petitioner in the year 1999 itself by instituting Original Application No.385/1999. This shows
that the claimant/petitioner raised the dispute immediately after the retrenchment of her services.
Her claim is not liable to be defeated in view of the judgment dated 22.12.2009 (Ex. PW1/C)
pronounced by the Hon’ble High Court of Himachal Pradesh. Otherwise too, in the reply, the
respondent has admitted that the persons junior to the petitioner have already been re-engaged in
obedience to the orders passed by the Hon’ble High Court of Himachal Pradesh and this
Court/Tribunal.
34.
While testifying in the Court as PW1, the petitioner has given her age as 47 years. It
is well known that a lady like the petitioner will not sit at home during the period she is/was out of
the service. The petitioner has failed to discharge the initial onus that during the period of her
forced idleness, she is/was not gainfully employed. In the statement of claim/demand, the petitioner
has not whispered a single word to the effect that she is/was not gainfully employed. She is thus not
entitled to the back wages.
35.
Taking into consideration the trite laid down in Mohan Lal’s case (cited supra) and
all other relevant factors (narrated above), I feel that the petitioner is entitled to the reinstatement of
her services. She is also entitled to the seniority and continuity in service.
36.
This issue too is decided in favour of the petitioner and against the respondent.
RELIEF (ISSUE NO. 7)
37.
As a sequel to my findings on the issues No.1 and 4, the instant claim petition
succeeds in part and the same is partly allowed. The retrenchment of the petitioner is set aside and
quashed. The respondent is directed to re-engage the petitioner forthwith. She shall be entitled to
the seniority and continuity in service from the date of her termination i.e. 30.9.1999 except back
wages. The respondent is also directed to consider the case of the petitioner for regularization of
her 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, she
(petitioner) shall be entitled to the regularization from the date/month of the regularization of the
services of her junior(s). Parties to bear their own costs.
38.
Before parting with this matter, I will like to add that the statement made by the
respondent (RW1) and the evidence adduced by him are in-fact beyond the pleadings and contrary
to the reply. In the reply, the respondent admitted that the services of the petitioner were engaged
on 01.7.1998. In the mandays chart Ex. RW1/A, the date of joining of the petitioner is recorded as
01.1.1999. Further, in the reply, the respondent pleaded that the petitioner left the job on 30.9.1999
and, thereafter, never reported for duty. Strangely, in the mandays chart Ex. RW1/A, it has been
mentioned that the petitioner served the respondent/department in the year 2001 as well. This
amply demonstrates that either the record is not being properly maintained in the office or some
mischief is being committed by fudging the record. Such mischief can be like preparing false
muster rolls of the workmen showing that they worked in a particular year (in which they never
worked) and were paid the wages. The matter being serious, this Court sincerely hopes and trusts
that the respondent will take corrective steps at his end.
39.
The reference is answered in the aforesaid terms.
40.
A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
41.
File after due completion be consigned to the Record Room.
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Announced in the open Court today this 22nd day of January, 2014.
(RAJAN GUPTA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171 001
CORRIGENDUM
Shimla, the 7th March, 2014
No. HHC.1(5-Computer/LSQ/Etc.)1997-VI.—The word “constitution” appearing in
second line of the first para of the Gazetted Notification No. HHC/e-Courts Project Meetings/2008-
I, dated 03-03-2014, published in the “Rajpatra” Himachal Pradesh, dated 04-03-2014 shall stand
replaced by the word “re-constitute” and also the Notification Reference No. i.e., “HHC/e-Courts
Project Meetings/2008-I, dated 3rd March, 2014” of the above referred Notification shall stand
substituted as “HHC.1(5-Computer/LSQ/Etc.)1997-VI-, dated 4th March, 2014”.
By order,
Sd/-
Registrar General.
__________
HIGHER EDUCATION DEPARTMENT
NOTIFICATION
Shimla-2, the 14th March, 2014
No. EDN-A-Kha(1)-2/2013.—On the proposal of Director of Higher Education and in
consultation with the Finance Department, the Governor, Himachal Pradesh is pleased to order to
frame the following norms for the next three years i.e. academic session 2014-15 to 2016-17 for the
Government Degree Colleges for assessment of requirement of post of Assistant Professor (College
Cadre) as well as work distribution of teaching personnel and other extra corriculam activities of
the Government Colleges:—
(1)
All the teachers will take 26 periods of one hour each in a week or 26 hours. The
remaining periods of the day will be utilized for the work relating to checking of
assignments/tests/terms papers as per requirement of CBCS/CCA system, general
activities such as:—sports & other extra corriculam activities or duties as assigned
by the Principal of the concerned college.
(a)
The number of theory periods for general subjects (without practical) viz.
Major, Minor, Compulsory and General Interest/Hobby per week shall be as
under:—
Major
= 4 hours × 2 = 8 hours/week
Minor
= 4 hours × 1 = 4 hours/week
Compulsory
= 3 hours × 1 = 3 hours/week
General interest hobby
= 1 hours × 1 = 1 hours/week
Total
= 16 hours
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(b)
Practical Subjects
Group size for practical subject will be 30 students. Accordingly the number
of section for students will be as under:—
Up to 30
= 1
Up to 60
= 2
Up to 90
= 3
Up to 120
= 4
and so on
Major (Theory) (Pract)
= 3× 2 hours
= 6 hours/week
Major (Lab)
= 2 hour ×2×2 (groups)
= 8 hours/week
Minor (Theory)
= 3 hours × 1
= 3 hours/week
Minor (Lab)
= 2 hour × 1 × 2 (groups)
= 4 hours/week
Compulsory
= 3 hours x 1
= 3 hours/week
General Interest/Hobby
= 1 hour × 1
= 1 hour/week
Total
= 25 hours/week
(c)
Commerce
Major
= 4 hours x 2
=8 hours/week
Minor
= 4 hours x 2
=8 hours/week
Compulsory
= 3 hours x 1
=3 hours/week
General interedst/hooby
= 1 hour x 1
=1 hours/week
Total
=20 hours/week
(d)
Langguages i.e. English & Hindi
Major
= 4 hours x 2
=8 hours/week
Minor
= 4 hours x 1
=4 hours/week
Compulsory-I
= 3 hours x 3
=9 hours/week
Compulsory-II
= 3 hours x 3
=9 hours/week
General interedst/hooby
= 1 hour x 3
=3 hours/week
Total
=33 hours/week
(e)
Post Graduation
There will be 36/48 period per week as per the subject.
The requirement of staff for an institution will be assessed as under :—
Up to 21 periods
= 1
22 to 42 periods
= 2
43 to 63 periods
= 3
64 to 84 periods
= 4
85 to 105 period
= 5 and so on
Further the Principal shall also ensure that all the teachers and other staff should remain
present at least seven hours daily or 42 hours in a week in the College/Institution regularly.
(2)
The theory classes of Music Instrumental and Vocal will be clubbed while
calculating the work load of Music Department. Group size for practical will be upto
10 students. However last group may be upto 15 students.
(3)
The class size of Major subjects in theory (Arts, Science, Commerce subjects) will
be assumed to be of 60 students. However, the 1st section of the students of major
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subject will be counted till 80 students and 2nd section will be prepared after 81
students.
(4)
For minor subject the old norms will be continued i.e. the class size be assumed upto
80 students. However, 1st section till 100 students and 2nd section thereafter from
101 to 180 and thereon. Group size for practical will be upto 30 students. However
last group may be upto 35 students.
(5)
In small Colleges, the work load as well as section will be prepared in a combined
manner i.e. major and minor will be clubbed.
(6)
The Principal of the concerned college shall ensure the 90 teaching days in a
semester and 180 teaching days in a academic year. The period of CCE alongwith
holding of mid-terms exam and taking assignments work etc. cannot be counted
with these teaching days. However, the Director of Higher Education, in
consulatation with Himahcal Pradesh University may designate the schedule of a
minimum of 90 teaching days in a semester and 180 teaching days in a acadmic year
keeping in view the duration of holidays, vocation, duration of exam and house tests
extra.
(7)
The Director of Higher Education will explore the possibility in consultation with
the HP University that either English or Hindi will be taught at least in two semester
as compulsory subjects for all the students in addition to the present UG
programmes from the next session.
(8)
No teacher will be engaged on PTA/Stop gap/period basis or any other nomenclature
by the Principal without the prior permission of the Director of Higher Education.
The matter of permission on period basis can only be considered by the Director of
Higher Education against sanctioned post. No fund will be provided by the Govt. in
this regard. The Principal will generate local funds for this purpose in PTA. If, it is
found that any Principal has engaged any incumbent on PTA/Stop gap/period basis
or any other nomenclature without the prior permission of the Director of Higher
Education the salary of the said incumbent will be paid from the salary of said
Principal.
By order,
Sd/-
Principal Secretary (Education).
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