jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
eaxyokj] 14 tqykbZ] 2015@23 vk"kk<+] 1937
fgekpy izns'k ljdkj
LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Shimla-2 , the 2nd July, 2015
No: Sharm (A) 6-2/2014 (Awards) 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
73&jkti=@2015&14&07&2015 ¼1901½
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Court D/Shala on the website of the Department of Labour & Employment of the Government of
Himachal Pradesh:—
Case
No:
Title of the Case
Date of Award/
Order
1. 232/14
President, M/S Inox
Wind
Employer, M/S Inox Wind
24-02-2015
2. 90/14
Suresh Bala
Sh. Vijay Kumar & others
24-02-2015
3. 10/14
Khazan Singh
E.E.HPPWD, J/Nagar
26-02-2015
4. 24/15
Geeta Devi
E.E.HPPWD, J/Nagar
26-02-2015
5. 62/14
Jai Ram
E.E.HPPWD, J/Nagar
26-02-2015
6. 375/14
Bhuri Singh
E.E.HPPWD, J/Nagar
26-02-2015
7. 32/15
Jagdish Chand
E.E.HPPWD, J/Nagar
26-02-2015
8. 34/15
Bir Singh
E.E.HPPWD, J/Nagar
26-02-2015
9. 351/14
Kartar Singh
E.E.HPPWD, J/Nagar
09-03-2015
10. 355/14
Hans Raj
E.E.HPPWD, J/Nagar
09-03-2015
11. 394/14
Raghubir Singh
E.E.HPPWD, J/Nagar
09-03-2015
12. 51/13
Girish Shortry
Conservator of Forest
17-03-2015
13. 214/13
Sanjay Kumar
D.F.O. Bilaspur
23-03-2015
14. 180/13
Pan Dei
D.F.O. Killar
24-03-2015
15. 172/13
Naresh Kumar
D.F.O. Killar
24-03-2015
16. 218/13
Mouji Ram
D.F.O. Palampur
31-03-2015
17. 220/13
Atma Ram
D.F.O. Palampur
31-03-2015
18. 225/13
Suneel Kumar
D.F.O. Palampur
31-03-2015
19. 227/13
Gagan Singh
D.F.O. Palampur
31-03-2015
20. 229/13
Hari Kishan
D.F.O. Palampur
31-03-2015
21. 230/13
Anita Devi
D.F.O. Palampur
31-03-2015
22. 231/13
Jai Ram
D.F.O. Palampur
31-03-2015
23. 232/13
Deep Raj
D.F.O. Palampur
31-03-2015
24. 234/13
Balwant Singh
D.F.O. Palampur
31-03-2015
25. 237/13
Ashok Kumar
D.F.O. Palampur
31-03-2015
26. 129/14
Sunita Devi
D.F.O. Palampur
31-03-2015
27. 259/12
Jagat Ram Forest
Conservator of
24-04-2015
28. 139/13
Prem Chand
E.E.HPSEB, Dharmpur
25-04-2015
29. 140/13
Hem Singh
E.E.HPSEB, Dharmpur
25-04-2015
30. 141/13
Hari Singh
E.E.HPSEB, Dharmpur
25-04-2015
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31. 109/12
Om Prakash
E.E.HPSEB, J/Nagar
29-04-2015
32. 238/13
Bishamber Singh
D.F.O. Palampur
29-04-2015
33. 233/13
Pritam Singh
D.F.O. Palampur
29-04-2015
34. 228/13
Kuldeep Singh
D.F.O. Palampur
29-04-2015
35. 239/13
Tara Chand
D.F.O. Palampur
29-04-2015
36. 219/13
Sanjay Kumar
D.F.O. Palampur
29-04-2015
37. 236/13
Rakesh Chand
D.F.O. Palampur
29-04-2015
38. 221/13
Rakesh Chand
D.F.O. Palampur
29-04-2015
39. 131/14
Ranjeet Singh
D.F.O. Palampur
29-04-2015
40. 235/13
Jaspal Singh
D.F.O. Palampur
29-04-2015
41. 222/13
Desh Raj
D.F.O. Palampur
29-04-2015
42. 128/14
Sandeep Rana
D.F.O. Palampur
29-04-2015
43. 224/13
Kalyan Chand
D.F.O. Palampur
29-04-2015
44. 125/14
Parkash Chand
D.F.O. Palampur
29-04-2015
45.
119/14
Meenakshi Sharma
D.F.O. Palampur
29-04-2015
46.
124/14
Meenakshi Sood
D.F.O. Palampur
29-04-2015
47.
126/14
Yash Pal
D.F.O. Palampur
29-04-2015
48.
127/14
Suneel Kumar
D.F.O. Palampur
29-04-2015
49.
130/14
Achhar Singh
D.F.O. Palampur
29-04-2015
50.
96/147
Shashi Pal Sharma
M/s MBD Printographics
27-04-2015
51.
184/13
Trishla Devi
Suresh Kumar & Others
27-04-2015
52.
287/14
Mamta Devi
D.M.Forest Corporation
22-04-2015
53.
374/14
Suresh Kumar
E.E.HPPWD, J/Nagar
04-05-2015
54.
223/13
Prakran Ram
D.F.O. Palampur
06-05-2015
55.
226/13
Kultar Chand
D.F.O. Palampur
06-05-2015
56.
240/13
Tilak Raj
D.F.O. Suket
12-05-2015
57. 191/15
Sukh Ram
E.E.HPPWD, J/Nagar
14-05-2015
58.
246/14
Mahender Singh
M/s GVK, EMRI, Solan
14-05-2015
59.
333/14
Rasilu Devi
E.E.HPPWD, J/Nagar
16-05-2015
60.
248/13
Rakesh Kumar
S.E.HPPWD, Shimla
23-05-2015
61.
245/13
Kamal Singh
M/s HN Steel Casting
23-05-2015
62.
24/13
Khem Raj
D.F.O. Lahaul
29-05-2015
63.
14/13
Shesh Ram
D.F.O. Lahaul
29-05-2015
64.
101/14
Rakesh Kumar
F.M. M/s Reinforced Soil
30-05-2015
65.
323/14
Ramesh Negi
E.Director M/s Surya R.
30-05-2015
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66.
201/13
Kuldeep Singh
E.E. HPPWD, J/Nagar
30-05-2015
67.
274/14
Lata Devi
E.E. HPPWD, J/Nagar
30-05-2015
68.
275/14
Sumna Devi
E.E. HPPWD, J/Nagar
30-05-2015
69.
276/14
Prem Singh
E.E. HPPWD, J/Nagar
30-05-2015
70.
277/14
Nag Chand
E.E. HPPWD, J/Nagar
30-05-2015
71.
278/14
Santoshi Devi
E.E. HPPWD, J/Nagar
30-05-2015
72.
279/14
Swaru Ram
E.E. HPPWD, J/Nagar
30-05-2015
73.
280/14
Joginder
E.E. HPPWD, J/Nagar
30-05-2015
By order,
R. D. DHIMAN,
Pr. Secretary ( Labour & Employment).
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 232/2014
The President/General Secretary, M/S Inox Wind Workers Union Basal, V.P.O. Basal,
District Una, H.P.
…Petitioner.
Versus
The Employer, M/S Inox Wind Limited Basal, Industrial Area Basal, Tehsil & District Una,
H.P.
...Respondent.
24-02-2015 Present: None for the petitioner.
Sh. Anish J.P. Adv. csl. for the respondent.
Sh. Manish Karol, Labour Officer-cum-Conciliation Officer, Una present in person.
Sh. Manish Karol, Labour Officer-cum-Conciliation Officer, Una has appeared in this Court
in pursuance to notice clarifying the circumstances in which reference was made when the parties
had already been settled the dispute. In his statement, said the Labour Officer has satisfactorily
explained peculiar circumstances in which reference was made inadvertently from Shimla.
However, has not pressed reference in view of the compromise Ex.P-A entered into between the
Management and Union duly represented by Sh. Sandeep Kumar, then the General Secretary,
Workers Union Basal. In view of the statement as stated above on record, the present claim is
disposed off as withdrawn and thus the demands No. 1 to 8 raised vide demand notice dated
04-09-2013 of the President/General Secretary, M/S Inox Wind Workers Union Basal (Una) is
finally settled between the parties who shall be bound by terms compromise Ex.P-A.
2. Ordered accordingly. The parties to bear their own costs.
3. The reference is answered as disposed off in the aforesaid terms.
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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 needful completion.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 90/2014
Smt. Suresh Bala, w/o Shri Arun Kumar, V.P.O. Pragpur, Tehsil Dehra, District Kangra,
H.P.
. . .Petitioner.
Versus
1. Shri Vijay Kumar, c/o M/S Tigaksha Metallics Pvt. Ltd., Plot No.16, Ram Nagar,
Industrial Area Gagret, Tehsil Amb, District Una, H.P (Contractor).
2. The Managing Director/Employer, M/S Tigaksha Metallics Pvt. Ltd., Plot No. 16, Ram
Nagar Industrial Area Gagret, Tehsil Amb, District Una, H.P. (Principal employer).
...Respondents.
24-02-2015 Present: None for the petitioner.
None for the respondent No. 1.
Sh. Rajesh Kosh, Law Officer for the respondent No. 2.
The case has been called out repeatedly at intervals before and after the lunch. None has
appeared on behalf of the petitioner /claimant (Smt. Suresh Bala) who is absent despite due service.
It is 3.00 P.M. None appearance of petitioner despite service is indicative of the fact that she is not
interested to pursue present reference and accordingly reference is disposed of. Reference is
answered in the aforesaid terms. The parties to bear their own costs. Let copy of the order be sent to
the appropriate Government for information and further necessary action / publication. The file,
after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 10/2014
Shri Khazan Singh s/o Shri Kalu Ram, r/o Village Partain, P.O. Gangoti, Tehsil Joginder
Nagar, District Mandi, H.P.
....Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
….Respondent.
26-02-2015
Present: Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of 1906uthorized1906on has been filed by the 1906uthorized representative for the
petitioner which be placed on record. Heard. Authorised representative for the petitioner has stated
at bar that industrial dispute raised by present petitioner has already been decided by this Court in
pursuance to reference made by the government. Thus, petitioner now does not want to proceed
with this present reference and has prayed its dismissal. Accordingly, 1906uthorized representative
for the petitioner in his statement on record has not pressed his claim besides prayed for its
dismissal. The present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 24/2015
Smt. Geeta Devi w/o Shri Kanshi, r/o Village Shilah, P.O. Khazoor, Tehsil Joginder Nagar,
District Mandi, H.P.
. . .Petitioner.
Versus
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The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
. . .Respondent.
26-02-2015
Present:
Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed her claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_______
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 62/2014
Sh. Jai Ram s/o Shri Dagi Ram, r/o Village Soun, P.O. Karshal, Tehsil Joginder Nagar,
District Mandi, H.P.
. . .Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
. . .Respondent.
26-02-2015
Present: Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
1908
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to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed his claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 375/2014
Shri Bhuri Singh s/o Sh. Bhekha Ram, r/o Village Gadhyara, P.O. Golwan, Tehsil Joginder
Nagar, District Mandi, H.P.
….Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
. . .Respondent.
26-02-2015 Present: Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed his claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The parties to bear their own costs.
1909
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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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 32/2015
Shri Jagdish Chand s/o Shri Lakhu Ram, r/o Village Patrain, P.O. Gangoti, Tehsil Joginder
Nagar, District Mandi, H.P.
. . .Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
. . .Respondent.
26-02-2015 Present: Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed his claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 34/2015
Sh. Bir Singh s/o Shri Sohan Singh, r/o Village Patrain, P.O. Gangoti, Tehsil Joginder
Nagar, District Mandi, H.P.
….Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
....Respondent.
26-02-2015 Present: Sh. N. L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed his claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
K. K. SHARMA,
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K. K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 351/ 2014
Sh. Kartar Singh s/o Shri Sher Singh, r/o Village Draman, P.O. Golwan, Tehsil Joginder
Nagar, District Mandi, H.P.
….Petitioner.
Versus
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The Executive Engineer, B&R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P.
….Respondent.
09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
The case called on several times but none has appeared on behalf of the petitioner despite
due service. It is 11.40 a.m. Be awaited and it be put up after lunch hours.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_______
09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
The case again called on several times but none has appeared on behalf of the petitioner. It
is 3.20 P.M. None appearance of petitioner despite service is indicative of the fact that he is not
interested to pursue present reference and accordingly reference is disposed off for non-
prosecution. According, reference is answered in the aforesaid terms. The parties to bear their own
costs. Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
09-03-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 355 / 2014
Sh. Hans Raj s/o Shri Sant Ram, r/o Village Joki, P.O. Drahal, 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.
09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
1912
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The case called on several times but none has appeared on behalf of the petitioner despite
due service. It is 11.35 a.m. Be awaited and it be put up after lunch hours.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
The case again called on several times but none has appeared on behalf of the petitioner. It
is 3.15 P.M. None appearance of petitioner despite service is indicative of the fact that he is not
interested to pursue present reference and accordingly reference is disposed off for non-
prosecution. According, reference is answered in the aforesaid terms. The parties to bear their own
costs. Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
09-03-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 394 / 2014
Sh. Raghuvir Singh s/o Shri Kanhiya Ram, r/o Village Sagnehar, P.O. Chauntra, 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.
09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
The case called on several times but none has appeared on behalf of the petitioner despite
due service. It is 11.30 a.m. Be awaited and it be put up after lunch hours.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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09-03-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
The case again called on several times but none has appeared on behalf of the petitioner. It
is 3.10 P.M. None appearance of petitioner despite service is indicative of the fact that he is not
interested to pursue present reference and accordingly reference is disposed off for non-
prosecution. According, reference is answered in the aforesaid terms. The parties to bear their own
costs. Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
09-03-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 51/2013
Date of Institution : 13.6.2013
Date of decision
: 17.03.2015
Shri Girish Shrotry s/o Shri Ravi Dutt Shrotry, H. No.81, Ward No.3, Akhara Bazar, Kullu,
Distt. Kullu, H.P.
…Petitioner.
Versus
1. The Conservator of Forest, Forest Circle, Kullu, Distt. Kullu, H.P.
2. The Divisional Forest Officer, Forests Division Kullu, Distt. Kullu, H.P.
….Respondents.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. S.S. Sippy, AR
For the Respondent(s)
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Sh. Girish Shrotry S/O Sh. Ravi Dutt Shrotry, H.
No. 81, Ward No.3, Akhara Bazar, Kullu, H.P. by i) The Conservator of Forest, Forest
Circle, Kullu, Distt. Kullu, H.P. ii) The Divisional Forest Officer, Forests Division Kullu,
Distt. Kullu, H.P. w.e.f. March, 2006 as per reply of employer/ w.e.f. 01.9.2007 as alleged
in the demand notice by the workman, without complying with the provisions of the
Industrial Disputes Act, 1947, as alleged by workman, is legal and justified? If not, what
amount of back wages, salary, seniority, past service benefits and compensation the above
worker is entitled to from the above employer/management?”
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2. In pursuance to receipt of reference from appropriate Government, notice was issued to
the petitioner who filed his statement of claim stipulating therein that he was appointed as beldar on
daily wages on 10.03.1999 in Forest Department, Kullu Division where he continued working there
till 31st August, 2007. It is specifically alleged that he was paid wages of an unskilled beldar but he
was actually performing the duties of computer/wireless operator and that respondents without any
notice orally terminated his service on 01.09.2007 retaining other junior workers. It is alleged that
respondents ignored his legitimate rights under the labour laws and recoursed to unfair labour
practice. Averments made in the statement of claim categorically provides that respondents did not
prepare any seniority list and gave fictional breaks so as to deprive petitioner benefits of having
worked continuously for 240 days in a year. It is alleged that respondents had wrongly shown that
petitioner had worked till 2006. The petitioner prayed for his re-engagement along-with all
consequential benefits such as seniority and back wages.
3. Repudiating the allegations as contained in the statement of claim, respondents no.1
and 2 jointly filed reply inter alia taken preliminary objections of maintainability, claim of the
petitioner being bad on account of delay and laches, the petitioner having failed to approach this
Court with clean hands, having suppressed the material facts. On merits, denied that petitioner was
engaged as a wireless operator/computer operator as there was no sanctioned post of such nature in
the forest department. However, admitted that he was engaged as a daily wager on bill basis as per
availability of funds during the period intervening from 3/99 to 2/96 to carry out the works and
mandays chart had also been annexed with the reply. It is claimed that petitioner had worked on bill
basis in Kullu Forest Division who left the work of daily wager of his own sweet will and that
respondent had never disengaged petitioner rather, vide notice no.11568 dated 8th March, 2011
another notice no.11882 dated 22nd March, 2011, the petitioner was asked to report to Range
Officer, Range Office Kullu for plantation and nursery work but he did not turn up for the work at
the relevant time. It is claimed that vide legal notice dated 25.4.2008, the petitioner had been
representing for his regularization as daily wager who could not be regularized as he had not
fulfilled the requisite criteria, asserted specifically that petitioner had not completed 240 days in
any of years he worked with the respondent no.2. It is specifically asserted that no provision of the
Industrial Disputes Act, 1947 has been violated by the respondents. It is also claimed that as per
information received from the field staff petitioner is/was gainfully employed as he was running a
cyber café. Accordingly, claim petition was sought to be dismissed. The reply filed by the
respondents was supported by the affidavit of respondent no.2.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition,
admitted that petitioner did not leave the job of his own rather, respondent had called him and told
that they did not have funds and as and when the funds were available he would be called for job.
5. From the contentions raised following issues were framed for determination on
14.11.2013:
1. Whether the termination of services of the petitioner by the respondent w.e.f. March,
2006 or 01-09-2007 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 come to the Court with clean hands 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.
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6. I have heard the Authorized Representative representing petitioner and ld. Dy. D.A. for
the respondents and have gone through the case file carefully.
7. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : No
Issue No. 2 : No
Issue No. 3 : Un-pressed
Issue No. 4 : No
Relief : Petition is dismissed per operative part of the Award.
REASONS FOR FINDINGS
ISSUE No. 1
8. Relationship of petitioner being workman having worked with the respondents as an
unskilled beldar on daily wages is not in dispute. The grievance of petitioner is that despite having
worked for more than 240 days his services have been illegally terminated without serving any
notice envisaged under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as
the Act) and at the same time, one month’s wages as required to be paid by respondents to
petitioner was also not given. The case of the petitioner remains that he joined respondents in Kullu
Division on 10th March, 1999 and worked with them till 31st August, 2007 whereas, the case of
respondents remain that he did not actually work till 2007 rather the petitioner is stated to have
worked till 2006 but petitioner had not completed 240 days in any of these years and was thus not
entitled to any protection envisaged under Section 25-F of the Act. To resolve the controversy on
this aspect, it would be relevant to refer to documentary evidence as well as contents of affidavits
of both the parties as they have supported of their respective pleas. In his affidavit under Order 18
Rule 4 CPC, the petitioner has asserted that he has worked for 240 days and remained employed
with the respondents as daily wager beldar from 10.3.1999 till 31st August, 2007 but actually he
was performing the duties of computer/wireless operator but wages paid to him were of an
unskilled labourer. The petitioner has claimed that respondents had recoursed to unfair labour
practice firstly by engaging him as unskilled labourer and getting the work of computer/wireless
operator although he was paid wages of an unskilled labourer and secondly his name was not
reflected in the seniority list and his seniority was disturbed by giving fictional breaks and thus
there was violation of Section 25-F. Not only this, petitioner has also claimed that respondents
while terminating his services had ignored mandate of Section 25-H of the Industrial Disputes Act
which postulates that the workman who came to last was to go first in the matter of retrenchment.
9. In support of his contention, petitioner has relied upon Ex. PW1/B which is the list of
daily wager of Kullu Forest Division as it stood on 1st January, 2012. With the aid of this
document, petitioner has made endeavor to establish that Smt. Babita Devi, Anurag and Smt.
Rewati Devi were made daily wagers from part time worker in the years 2008 and 2009
respectively, whereas petitioner himself had joined in the year 1999 and these persons ought to
have been removed first while retrenching instead of petitioner which has not been done so in this
case. Microscopic examination of this document would establish that Smt. Babita Devi, Anurag and
Smt. Rewati Devi had been working as part time workers since January 1992, April 1996 and
April, 1998 and Smt. Babita Devi was converted on daily wages basis from part time worker w.e.f.
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24.7.2008, whereas Anurag was also part time worker who made on daily wages from 21.12.2009
and Smt. Rewati Devi who too was part time worker was converted on daily wages basis on
12/2009. Although Authorized Representative of the petitioner contended that petitioner was
appointed earlier and with that analogy, three persons as stated above were junior to him but his
services have been terminated by oral notice in violation of provisions of Industrial Disputes Act.
Ass noted above that Smt. Babita Devi, Anurag and Smt. Rewati Devi had been engaged in the year
1992, 1996 and 1998 respectively, these persons cannot be stated to be junior in service to
petitioner to establish the fact that the services of these part time workers were converted as daily
wager in the year 2008 and 2009 as their seniority is to be reckoned from the date of their joining
and not when they were converted from part time worker to daily wager. Thus, it would be unsafe
to conclud that petitioner was senior in service despite being appointed as daily wager on 10.3.1999
from Smt. Babita Devi, Anurag and Smt. Rewati Devi. Be it noticed that Authorized Representative
while cross examining RW1 had not put even single question disputing the correctness of Ex.
PW1/B the seniority list which tantamounts to accepting correctness of seniority list. The only
question which has been asked to RW1 Shri B.L. Negi is that the name of petitioner was not
included in the seniority list who clarified by stating that no seniority list had been prepared after
1998. Thus, for aforestated reasons, there is no substance in the plea of petitioner that respondents
had violated the provisions of Section 25-H of the Act.
10. It is settled preposition of law that for seeking the protection of Sections 25-G and 25-
H of the Act, the requirement of having completed 240 days is not a condition precedent as has
been held by the Hon’ble Supreme Court in Central Bank of India vs. S. Satyam, 1996 (5) SCC 419
and Harjinder Singh vs. Punjab State Warehousing Corporation, AIR 2010 SC 1116. In HP State
Electricity Board vs. Shri Charan Dass 2012(1) Him. L.R. (DB) 320, the respondent failed to
establish that the petitioner has abandoned the job of his own free will and the respondent retained
the persons junior to the petitioner in service and it was the case of the respondent itself that no
person junior to the petitioner save and except those who were ordered to be reinstated by the
Court, were retained in service. In such circumstances, it was held by the Hon’ble High Court of
H.P. that the plea of the respondent itself reveals that the persons junior to the petitioner have been
retained in service and as such the respondent has violated the provisions of Sections 25-G and 25-
H of the Act and the completion of 240 days by the workman in a calendar year is not required for
seeking the protection under Sections 25-G and 25-H of the Act.
11. In so far as the claim of the petitioner in the case in hand is concerned that he had
worked for more than 240 days and there was fictional break given in his services by the
respondents so as to deprive him to the benefits of Section 25-B of Industrial Disputes Act it would
be appropriate to refer to voucher-wise detail of wages of the petitioner from March 1999 to
February, 2006. Perusal of Ex. RW1/B clearly shows that the petitioner had worked for 225 days in
the year 1999, 204 days in the year 2000, 170 days in the year 2001, 175 days in the year 2002, 179
days in the year 2003, 61 days in the year 2004, 61 days in the year 2005 and 27 days in the year
2006 and there was no period of working in the year 2007. This document clearly belies the claim
of the petitioner that he had worked for more than 240 days ever since his engagement with the
respondent. Be it noticed no other workman who worked with petitioner had been examined who
could have supported plea of petitioner and it is the uncorroborated testimony of petitioner which
too does not inspire confidence as mandays chart Ex. RW1/B shows that petitioner had worked
only for 61 days in 2004, 61 days in 2005 and 27 days in 2006 and there is no working of petitioner
in 2007. The petitioner has also made futile attempt to connect himself having worked with the
respondents by referring to the copies of cash account of Divisional Forest Officer Kullu Forest
Division for months of 2/2006, 3/2006, 4/2006, 5/2006, 6/2006, 7/2006, 8/2006, 9/2006, 10/2006,
11/2006, 12/2006, 1/2007, 2/2007, 4/2007, 5/2007, 6/2007 and 7/2007 showing that name of
petitioner was printed in the bottom of these cash accounts but by proving of printing name of
petitioner which too is not complete as it is without identification these could not be read in
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evidence to have been prepared by petitioner only or say that petitioner had also worked in 2007.
Moreover, these documents do not bear any signature of petitioner and as such it cannot be stated
that the petitioner had prepared these documents who remained employed with the respondents not
only in the year 2006, but also in the year 2007. Thus, cash account vouchers bearing word
“Girish” on the bottom of documents does not establish that the said petitioner had worked with the
respondents and remained their employee as nothing has been brought on record to prove that the
petitioner was made any payments for this period. Secondly, while issuing legal notice R-IV at the
behest of the petitioner, the counsel issuing notice there was stipulation qua the period till when the
petitioner remained employed i.e. petitioner had worked till 25.4.2008 and when the notice was
issued to the respondents the petitioner was working as computer operator. It would be imaginable
that despite industrial dispute, petitioner continued working as computer operator. More so, when it
is not the case of the petitioner that he has worked for 240 days and he claimed to have worked till
31st August, 2007. Thus, the plea so made in the notice R-IV gets falsified from averments made in
the claim petition. In view of the foregoing discussion, it is held that the petitioner had failed to
establish that he had worked with the respondents continuously for a period of 240 days in a year
preceding his termination and thus the respondents were not under any legal obligation to have
recoursed to procedure of Section 25-F of the Industrial Disputes Act. In absence of reliable
evidence qua petitioner being senior to Anurag, Smt. Babita and Smt. Rewati, it cannot be stated
that provisions of Section 25-G and Section 25-H were not followed and that these provisions were
violated in any manner rather it has come that petitioner was junior to all the three and in the matter
of retrenchment, he being junior most was to go first and thus no provision of Industrial Disputes
Act was violated. For the aforesaid reasons, points in hand answered in the negative.
ISSUE NO. 2
12. Ld. Dy. D.A. for the respondents has argued with vehemence that the claim petition is
not maintainable. In support of his contention he has contended that petitioner was not given any
fictional break and thus case under Section 25-F as well as the provisions of Sections 25-G and H
of the Industrial Disputes Act was not made out. Since respondents have not disputed that the
petitioner being their daily wage workman petitioner could legitimately raised his grievances before
the Tribunal and merely because petitioner has failed to establish having worked for 240 days in a
calendar year preceding his termination and that at the same time he has failed to prove having
been disengaged and not offered opportunity of reemployment, thereafter, as is required under law,
suffice would be to state here that petitioner could maintain his claim petition on both these counts
and merely because he has failed to establish his claim the same would not ipso facto establish that
the claim petition is not maintainable. Accordingly, point in hand is answered in favour of the
petitioner and against the respondents.
ISSUE NO. 3
13. Unpressed.
ISSUE NO. 4
14. Ld. Dy. D.A. has contended with vehemence that petitioner is not entitled to any relief
in view of delay and laches. On the other hand, Authorized Representative of representing
petitioner has disputed the correctness of submission so made by ld. Dy. D.A. It is settled law that
in case a dispute is referred to this Tribunal for determination, the Court will have to return a
finding on merits and the delay in raising the dispute may be considered by the Court at the time of
granting the final relief as has been held by our own Hon’ble High Court in Bhatag Ram’s case
(supra). In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the
delay of more than 10 years was held to have not come in the way of the workman whose services
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were illegally terminated by holding that the provisions of Limitation Act is not applicable to
industrial dispute but however, depending upon the facts and circumstances of each case, the
principle of delay and laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors.,
2005 (1) Himachal Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of
India, CWP No. 812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as
Divisional Manager vs. Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar vs.
HPSEB and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon’ble High Court of H.P. that
the Labour Court cannot dismiss the claim on the ground of delay and laches once the same has
been referred by the State Government and the Labour Court is bound to decide the reference
which was made by the State Government and same is required to be adjudicated upon the merits
without touching the aspect of delay and laches. The Hon’ble Apex Court in the Bombay Gas Co.
Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has categorically held that as such of all those
employees, who are entitled to take the benefit of Section 33-C (2) may not always be conscious of
their rights and it may not be right to put the restriction of limitation in respect of claim which they
may have to make under the provision and in absence of any provision for limitation, it may not be
open to the Court to introduce the limitation on the ground of fairness and justice.
15. No material has been placed on record by the respondents to establishing that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case. As such, the
petitioner cannot be denied relief claimed for delay and laches and thus, point in hand is answered
in negative in favour of the petitioner and against the respondents.
RELIEF (ISSUE NO.5)
16. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.
However, the parties are directed to bear their own costs.
17. The reference is answered in the aforesaid terms.
18. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
19. File after due completion be consigned to the Record Room.
Announced in the open Court today this 17th day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_______
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 214/13
Date of Institution : 20.11.2013
Date of decision : 23.03.2015
Shri Sanjay Kumar s/o Shri Damodar Singh, r/o Village & P.O. Malyawar, Tehsil
Ghumarwin, District Bilaspur, H.P.
…Petitioner.
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Versus
The Divisional Forest Officer, Bilaspur Division, Distt. Bilaspur, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. S.S. Sippy, AR
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Sh. Sanjay Kumar S/O Sh. Damodar Singh, R/O
Village & PO Malyawar, Tehsil Ghumarwin, Distt. Bilaspur, H.P. by The Divisional Forest
Officer, Bilaspur Division, H.P. w.e.f. 21.9.2012 without following the provisions of the
Industrial Disputes Act, 1947 is legal and justified? If not, what benefits, including
reinstatement, amount of back wages, salary, seniority, past service benefits and
compensation the above worker is entitled to from the above employers?”
2. Brief facts as enumerated in the claim petition reveal that petitioner had been engaged
by respondent at Nursery Beat Tihra, P.O. Malaywar, Tehsil Sadar, Distt. Bilaspur as daily wage
worker in the year 2009 who worked with respondent till 21st September, 2012 when his services
were illegally terminated without any notice and compliance of Section 25-N of the Industrial
Disputes Act, 1947. Averments made in the claim petition further reveal that the services of
petitioner was more than satisfactory who had never been served with any chargesheet or show
cause notice by his employer till termination of his services which is illegal and void entitling
petitioner to full back wages and other consequential benefits including seniority and continuity in
service. It is claimed that termination of services of petitioner falls in the definition of retrenchment
under Section 2(oo) of the Industrial Disputes Act. The grievance of the petitioner also remains that
certain junior workers were retained in service and his services had been terminated ignoring and
violating the principle of ‘first come last go’ and thereby the respondent had violated mandate of
Section 25-G and Section 25-H of the Act. Claiming to have remained unemployed ever since his
illegal termination, the petitioner has claimed full back wages along-with all incidental benefits.
Moreover, the above establishment was still continuing and work was going where workers were
regularly engaged by respondent. Accordingly, petitioner has claimed benefits including back
wages as stated above from the respondent.
3. The respondent repudiated claim by filing reply inter alia taking preliminary objections
of maintainability, petition being bad on account of delay and laches. On merits denied petitioner
being employed from 2009 to 31st September, 2012. It is asserted that the petitioner was engaged as
“seasonal worker” in Tihara Forestry who was not daily wager on seasonal forestry work like fire
protection and nursery as per availability of works and funds, although admitted that petitioner had
served the respondent department till 21st September, 2009. It is also contended that petitioner did
not work even a single day in the year 2010. The petitioner worked for 61 days in the year 2009
and in the year 2011 he (petitioner) had worked 65 days whereas in 2012 he worked for 76 days.
The respondent in its reply had maintained that the petitioner had never completed 240 days of
work in any calendar year and that he was a seasonal worker engaged for the purpose of fire
protection work only. Not only this, petitioner had been employed with the undertaking that he was
ready to serve in the department as per availability of work and he would not claim any seniority at
the time of his initial engagement as seasonal worker in the year 2009. It is denied that any junior to
the petitioner was retained by the respondent and thus principle of ‘last come first go’ was not
ignored. Not only this, petitioner is stated to have left work of his own and his services were never
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terminated by the respondent and at the same time he denied that petitioner has no source of
income for his livelihood. Rather, he had own agricultural work and was gainfully employed.
Accordingly, denying all allegations qua violation of Sections 25-G and H it is asserted that
petitioner was not entitled to any relief and thus the petition was sought to be dismissed in the
interest of justice.
4. No rejoinder was filed as is evident from zimni orders dated 13th March, 2014.
5. To prove his case, petitioner has sworn his affidavit Ex. PW1/A under Order 18 Rule 4
CPC, Ex. PA application under section RTI Act, Ex. PB mandays chart concerning petitioner, Ex.
PC mandays chart of Garja Ram, Mark-A copy of affidavit submitted by petitioner to the forest
department at the joining of service which has also been filed by the respondent as annexure-R-9
and closed the evidence. On the other hand, repudiating the evidence led by petitioner, respondent
has examined Shri H.K. Sarwata, the then Divisional Forest Officer, Forest Division Bilaspur
tendered/proved Ex. RW1/A, affidavit of the above named forest officer Ex. RW1/B, affidavit
which is same as Ex. R-9. Exts. RW1/C and D, copies of muster rolls, Exts. RW1/E to RW1/F
copies of wage bills and closed the evidence.
6. I have heard the Authorized Representative representing petitioner and ld. Dy. D.A. for
respondent and have gone through the case file carefully.
7. From the contentions raised, issues were framed by my ld. predecessor for
determination on 13.3.2014 which are as under:
1. Whether the termination of the services of the petitioner by the respondent w.e.f.
21.09.2012 is/was illegal and unjustified as alleged?
. . .OPP.
2. Whether the petitioner has a cause of action?
. . .OPP.
3. Whether the petition is not maintainable in the present form?
. . .OPR.
4. Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect? . .
.OPR.
5. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : No
Issue No.3 : Impressed
Issue No.4 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously with repetition of evidence.
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10. The case of the petitioner simplicitor is that he was employed as daily wager on 1st
January, 2009 who continued to work till 20th September, 2012 continuously and that vide verbal
order, he was disengaged by respondent on 21st September 2012. To prove his claim, he has
deposed on oath and filed affidavit Ex. PW1/A stipulating therein the time for which he remained
employed with the respondent and was disengaged by a verbal order. To appreciate the claim of the
petitioner being continuous employed for 240 days in the preceding years when he remained
employed, it would be apt to refer to mandays chart Ex. RW1/J, which clearly stipulates that
petitioner had been engaged on 01.4.2009 on muster roll prepared till 31st May, 2009 when he
worked for 30 days and 31 days respectively and thereafter, he was made payment on the basis of
various bills but he had never worked 240 days in a given year. As in the years 2009 and 2011, he
(petitioner) worked for 61 and 65 days. He did not work in the year 2010 and in the year 2012 he
worked for 76 days. The plea of respondent remains that petitioner was a seasonal worker and ld.
Dy. D.A. representing the respondent has relied upon Ex. PA information supplied to petitioner
under the RTI Act which showed that petitioner as well as one Garja Ram s/o Shri Lahnoo Ram
had worked as a seasonal labourer but certainly plea of petitioner being seasonal worker is not
established for reasons stated hereinafter.
11. Admittedly, petitioner while being engaged was appointed without any appointment
letter by which it could be inferred that his engagement was only for seasonal work. Even the
muster roll relied upon by the respondent Ex. RW1/C and Ex. RW1/D nowhere stipulates that he
was a seasonal worker. Even subsequent bills Exts. Ex. RW1/E to RW1/I also do not support the
plea of respondent qua petitioner being a seasonal worker. Ld. Authorized Representative for the
petitioner has relied upon the judgment of Hon’ble High Court of Himachal Pradesh titled as Block
Development Officer, Pragpur vs. Yoginder Kumar & Ors. reported in 2008 LLR 763 in which the
Hon’ble Court has relied upon the judgment of Hon’ble Supreme Court titled as S.M. Niljakar and
others vs. Telecom, District Manager, Karnataka, 2003(97) FLR 608. In this judgment Hon’ble
Apex Court has held under what circumstances termination of service of workmen engaged in the
scheme or project may not amount to retrenchment. It was also held that if the workman had been
employed in a project, it would have spelled out by issuing a separate appointment letter informing
them that their employment was co-terminus with the project or in the alternative even on the
muster roll this fact that the employment is in project could be incorporated. The observations of
Hon’ble Court clearly postulates the necessity of apprising workman about the purpose for which
he was engaged by a written letter or stipulation on the muster roll which has not been done by the
respondent in this case. Since there was no contract entered into by the employer with workman
and that workman had not been put to notice at any stage in writing that their employment was in
project as has been held by Hon’ble High Court in Yoginder Kumar’s case (supra) and with same
analogy without any written letter or putting workman notice of employment as seasonal worker, it
would be unsafe to hold that petitioner was seasonal worker. As such, bald plea of the respondent
that the petitioner was engaged for seasonal work only merits rejection rather the respondent in not
maintaining the seniority list as admitted by RW1, the then Divisional Forest Officer, Bilaspur
manifestly shows unfair labour practice and such plea seems to have been taken that with the object
to deny the claim of the petitioner. As such, it is held that petitioner has although failed to prove to
have worked for 240 days, yet he is held to be not seasonal worker as contended by respondent.
12. Enough has been emphasized by ld. Dy. D.A. that petitioner had given affidavit in
which he had undertaken to work as daily wager for short duration and in this affidavit petitioner
had also declared that he would not claim any seniority if respondent removed him from service if
not found satisfactory and that the petitioner would not approach any Court or institute case for
redressal of his grievance on this score. It may be pertinent to mention here that this affidavit is not
legally attested document at the same time it does not bear any date of its execution so it cannot be
enforced against petitioner. Otherwise, also with the aid of such document rights of workman
cannot be defeated. Thus, with the aid of Ex. RW1/B respondent cannot derive any benefits and the
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same would not eclipse the rights of the petitioner. More so, when the petitioner has also filed
affidavit that respondent was always satisfied with his work as he was never given any show cause
notice or any charge-sheet. Thus, in absence of any such evidence, affidavit Annexure R-IX cannot
be used against petitioner so as to terminate his services.
13. In so far as the plea of petitioner that respondent had violated the mandate of Sections
25-G and 25-H of the Industrial Disputes Act, it would be apt to mention here that RW1 Shri H.K.
Sarwata while stepping into the witness box has admitted in unequivocal terms that he did not
know if 15 workers who were junior to petitioner were employed. He has further stated Sunder
Ram was junior to the petitioner as enumerated in mandays chart Ex. PB. Version of respondent
RW1 in cross-examination thus supports the plea of petitioner. He has admitted that Garja Ram
remained employed with forest department whose name was highlighted in the mandays chart.
Perusal of this Ex. PC shows that Garja Ram had not worked in the years 2009, 2010, 2011 and
2012 and was engaged on 16.4.2013 and worked till 15.6.2013 for about 61 days which establish
that Garja Ram was subsequently appointed and per the affidavit of the petitioner on which he has
not been crossexamined that Garja Ram was junior to petitioner and was engaged much after his
termination but before engaging junior persons petitioner was not issued any notice as was required
under Section 25-H of Industrial Disputes Act as RW1 has admitted that according to record
available in the office no letter was issued to petitioner before engaging Garja Ram in 2013. At the
same time, plea of the respondent that respondent had not disengaged petitioner who himself had
left the job also merits rejection as no evidence on record was led by respondent showing that any
disciplinary proceedings was initiated against the petitioner qua his absence or that any notice was
served upon him calling to join his duties. Be it noticed that RW1 has also admitted that no
compensation was paid to the petitioner which clearly shows that neither any notice nor
compensation in lieu of wages was given to the petitioner as required of Industrial Disputes Act.
14. To substantiate his claim for wrongful retrenchment under Section 25- G and Section
25-H of Industrial Disputes Act even if the petitioner had failed to establish that he did not prove to
have completed 240 days in a calendar year yet evasive reply of the respondent RW1 that he could
not tell if there are 20 persons junior to the petitioner who were still engaged clearly showed falsity
of defence so raised or that RW1 was pleading ignorance qua material fact which he ought to have
known. Thus, from the deposition made by RW1, respondent is held to have certainly did not
adhered to mandatory provision of ‘last come first go’ envisaged under Section 25-G and thus it
appears that entire exercise qua disengagement of the worker was on the basis of hire and fire. Even
if, the petitioner had not completed 240 days, the petitioner was entitled protection under Section
25-G of Industrial Disputes Act. Since the disengagement of the petitioner was against the mandate
of Section 25-G, respondent was required to issue notice to the petitioner before engaging new
workman. Even respondent has failed to prepare any seniority list reflecting name of petitioner as
admitted by RW1 which is certainly unfair labour practice. In view of the foregoing discussions,
issue no. 1 is decided holding that the petitioner had been illegally and wrongfully disengaged by
the respondent without following or complying the mandate of Section 25-G of the Industrial
Disputes Act.
15. Ld. Dy. D.A. during the course of argument has referred to crossexamination of
petitioner PW1 in which he had admitted that after his disengagement, he had been residing with
his brother and cultivated the land besides the land which is with brother was inherited from father.
This admission clearly shows that petitioner was engaged who had reasonable earning from
cultivation of land and thus he cannot stated to have been lawfully engaged. As such, I see force in
the argument of Dy. D.A. representing respondent that petitioner is not entitled any back wages
who was gainfully employed in agricultural activities after his disengagement. Issue in question is
decided accordingly. In view of foregoing discussion, it cannot be stated that the petitioner had no
cause of action and thus issue no.2 is answered in negative in favour of petitioner and for similar
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reasons issue no.1 decided holding that termination of petitioner is bad, illegal and unjustified in
view of violation of Sections 25-G and 25-H of Industrial Disputes Act.
ISSUE NO. 3
16. This issue was not pressed by ld. Dy.D.A. at the time of arguments which is decided
unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
17. Ld. Dy. D.A. has contended with vehemence that petitioner is not entitled to any relief
in view of delay and laches. On the other hand, Authorized Representative of representing
petitioner has disputed the correctness of submission so made by ld. Dy. D.A. It is settled law that
in case a dispute is referred to this Tribunal for determination, the Court will have to return a
finding on merits and the delay in raising the dispute may be considered by the Court at the time of
granting the final relief as has been held by our own Hon’ble High Court in Bhatag Ram’s case
(supra). In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the
delay of more than 10 years was held to have not come in the way of the workman whose services
were illegally terminated by holding that the provisions of Limitation Act is not applicable to
industrial dispute but however, depending upon the facts and circumstances of each case, the
principle of delay and laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors.,
2005 (1) Himachal Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of
India, CWP No. 812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as
Divisional Manager vs. Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar vs.
HPSEB and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon’ble High Court of H.P. that
the Labour Court cannot dismiss the claim on the ground of delay and laches once the same has
been referred by the State Government and the Labour Court is bound to decide the reference
which was made by the State Government and same is required to be adjudicated upon the merits
without touching the aspect of delay and laches. The Hon’ble Apex Court in the Bombay Gas Co.
Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has categorically held that as such of all those
employees, who are entitled to take the benefit of Section 33-C (2) may not always be conscious of
their rights and it may not be right to put the restriction of limitation in respect of claim which they
may have to make under the provision and in absence of any provision for limitation, it may not be
open to the Court to introduce the limitation on the ground of fairness and justice.
18. No material has been placed on record by the respondents to establishing that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case. As such, the
petitioner cannot be denied relief claimed for delay and laches and thus, point in hand is answered
in negative favour of the petitioner and against the respondent.
RELIEF (ISSUE NO.5)
19. As a sequel to my findings on the issues no. 1 to 4, the reference/claim petition is
partly allowed and respondent is hereby directed to reengage the petitioner forthwith, who shall be
entitled to seniority and continuity from the date of his illegal termination, however, without back
wages. Parties to bear their own costs.
20. The reference is answered in the aforesaid terms.
21. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
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22. File after due completion be consigned to the Record Room.
Announced in the open Court today this 23rd day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 180/2013
Date of Institution : 17.10.2013
Date of decision : 24.03.2015
Smt. Pan Dei w/o Shri Mahender Singh, r/o Village Parmas, P.O. Killar, Tehsil Pangi,
District Chamba, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Pangi Forest Division, Killar, District Chamba, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Pan Dei, W/O Shri Mahender
Singh, R/O Village Parmas, P.O. Killar, Tehsil Pangi, District Chamba, H.P. during 1996 to
2006 by the Divisional Forests Officer, Pangi Forest Division, Killar, District Chamba, 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. Brief facts as set up in the claim petition reveal that petitioner was engaged by
respondent in April, 1996 in Range Killar on muster roll, on daily waged basis for which no
appointment order was given while engaging her in service. The petitioner claimed to have worked
till 2011 when her services were illegally terminated and that from the year 1996 till 2010,
respondent had given fictional breaks so that the petitioner could not complete 160 days in a
calendar year so that her services are not treated in continuous service required per Govt.
notification providing for regularization in Pangi Sub Division falling in District Chamba (HP).
Averments made in the claim petition further that several persons working along-with petitioner
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had been engaged without being given any breaks. Although, even at the time of giving fictional
breaks to the petitioner from the year 1996 onwards, the principle of ‘last come first go’ had not
been followed by respondent as the persons junior to her namely Man Singh who was appointed in
1996, Kewal Ram in 1997 and Janam Singh in 1998 had been engaged by the respondent without
breaks and thus, respondent violated the provisions of Section 25-G of the Industrial Dispute Act,
1947 (hereinafter referred to as the Act). Claiming that all the above named workmen had been
regularized and petitioner was deliberately ignored by respondent giving fictional breaks with
ulterior motive so that petitioner is not regularized despite having complete requisite number of
days in 12 calendar months in preceding in seven years, it is alleged that even at the time of
termination of the services of petitioner department had not given any notice and at the same time,
no inquiry had been conducted prior to her retrenchment. Thus, the act of respondent in terminating
of services of petitioner was null and void and ab-initio. It is alleged that consequent upon the
termination of the services of petitioner in November 2013, petitioner has raised demand against
the respondent department for which the copy had been forwarded to Labour Officer, Chamba for
necessary action and during the conciliation, the matter was not settled amicably and the report
under Section 12(4) of the Act has been referred to appropriate Govt. for making reference. Even
during the pendency of dispute before conciliation officer as well as in this Court, the services of
petitioner had been engaged and disengaged on account of fictional breaks given by the department
without taking permission under Section 33-C (2) of the Act and lastly the services of petitioner
had been disengaged on account of fictional break given by the department w.e.f. 01.11.2013
without notice as required under Section 25-F (a) of the Act. The grievance of the petitioner
remains that persons junior to her namely Dhyan Chand, Mehar Chand Ramesh Kumar and Man
Singh have been regularized by the department in October, 2007 and those who had been engaged
by the department in 1996 and 1997 had been regularized in January, 2008, whereas petitioner had
been working under the department since 1996 has yet not been regularized and thus petitioner
alleges unfair labour practice on the part of respondent by giving fictional breaks in service from
the year 1996 to 2006. Accordingly, petitioner has prayed that the period of fictional breaks from
1996 onwards be set aside and respondent be directed to pay wages for the break period. The
petitioner further prays that respondent be directed to grant work charge/regular status to petitioner
after completion of eight or ten years service w.e.f. 01.01.2006 or from the date of her juniors
having been regularized in the pay scale of Rs.4900- 10680/- along-with interest @ 12% per annum
till the date of realization of amount and litigation expenses of Rs.10,000/- as costs also be paid to
petitioner.
3. Respondent contested petition filed separate reply inter alia taken preliminary
objections of maintainability, petitioner having no cause of action, petition being bad on account of
delay and laches and that the respondent department had regularized the services of labourers who
had completed seven years of continuous service with 160 days in each calendar year according to
their seniority and fulfillment of the Government policy as stipulated in letter no. PER (AP)-C-
B(2)-2/2012 dated 31st August, 2013 of Principal Secretary to the Government of Himachal
Pradesh. On merits, it is stated that the case of the petitioner for regularization has already been
referred by CCF Chamba vide memo no. A-IX-14/1/Pangi/10533 dated 28.1.2013 and that the
delay had occurred due to incorrect name of petitioner in official records as the name of petitioner
was appearing as ‘Pinki’ in some of the muster rolls whereas some muster rolls showed Pan Dei
and this was clarified by petitioner by furnishing affidavit with regard to her name as Pan Dei.
Thus, there is no deliberate delay on the part of the respondent. On merits, admitted that petitioner
has been engaged in Killar Range of Pangi Forest Division on muster roll basis w.e.f. April, 1996
as it can be gathered from the mandays chart. Since petitioner was issued muster roll on being
engaged, there was no cause of action to issue specific appointment. It is emphatically denied that
respondent had disengaged the petitioner rather she was still working in Killar Range of Pangi
Division and no fictional breaks were given to her. It is contended that petitioner of her own use to
come and go without intimating and that she had worked with respondent department
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intermittently. Thus, relying upon the plea of reference of regularization of petitioner, cause of
action as pleaded in the claim petition filed by petitioner is denied and the petition is sought to be
dismissed.
4. The petitioner filed rejoinder and reiterated her stand as maintained in the claim
petition.
5. To prove her case, petitioner has sworn an affidavit Ex. PW1/A and closed her
evidence. On the other hand, repudiating the evidence led by petitioner, respondent had examined
Shri S.P. Sharma the then Divisional Forest Officer tendered Ex. RW1/B mandays chart of
petitioner, Ex. RW1/C letter dated 31st August, 2012, Ex. RW1/D copy of affidavit of petitioner,
Ex. RW1/E letter dated 28.1.2013, Mark-A seniority list of regular and daily wage labour of Pangi
Forest Division Killar and Mark-B letter dated 20th July, 2011 regarding regularization of daily
waged workers/contingent paid workers and closed evidence.
6. I have heard the Authorized Representative representing petitioner and ld. Dy. D.A. for
respondent and have gone through the case file carefully.
7. From the contentions raised, issues were framed by my ld. predecessor for determination
on 03.5.2014 which are as under:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during the years 1996 to 2006 is/was illegal
and unjustified as alleged?
. .OPP.
2. Whether the petitioner has a cause of action?
. . .OPP.
3. Whether the claim petition is not maintainable in the present form?
. . .OPR.
4. Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?
. . .OPR.
5.
Relief
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : No
Issue No.3 : Undressed
Issue No.4 : No
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously with repetition of evidence.
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10. Factum of petitioner having been appointed as daily wager on muster roll by the
respondent in April, 1996 is not in dispute. It is also not in dispute that eligibility for regularization
of workers in respect of tribal area was to be on the basis of number of minimum requisite days and
for Pangi Sub Division it was 160 days. It is admitted case of petitioner that petitioner had worked
since April, 1996 but had been deliberately given fictional breaks by respondent so that she did not
complete 160 days to get benefits of Section 25-B of the Act. The plea of respondent on the other
hand remains that petitioner was still working but had been working intermittently as she of her
own use to not come on her duty as she willfully absented several times from it. To appreciate the
genuineness of the plea so raised by respondent, suffice would be to state here that bald assertion of
the respondent that she willfully absented from her duties is devoid of merit as there is nothing in
evidence to show that any letter or intimation was sent to petitioner for her unauthorized absence
from her duties. Rather, it is projected to be case as if petitioner came of her own and worked and
she left the work of her own sweet will. The plea of petitioner on the other hand remains that
fictional breaks were given to her and that several persons junior to her namely Man Singh and
Janam Singh have been regularized by respondent and these persons were actually not given
fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/B would reveal that in the year 1996
petitioner had worked for 119 days, 190 days in the year 1997, 195 days in the year 1998, 231 days
in the year 1999, 184 days in the year 1999, 231 days in the year 2000, 219 days in the year 2001,
231 days in the year 2002, 178 days in the year 2003, 181 days in the year 2004, 239 days in the
year 2005, 121 days in the year 2006, 176 days in the year 2007, 211 days in the year 2008, 209
days in the year 2009, 212 days in the year 2010, 205 days in the year 2011, 194 days in the year
2012 and 175 days in the year 2013. It can be noticed that in the year 1996 petitioner has worked
for 119 days and in the year 2006 petitioner is shown to have worked only for 121 days i.e. less
than 160 days, whereas for other remaining years she had worked for more than 160 days. Thus,
this break being within a period of seven years from her termination was definitely a fictional break
as except 2006 and 1996 in remaining years she had worked for more than 160 days. The act of the
respondent in giving fictional break is manifestly arbitrary without any basis. Seniority list of
regular and daily waged labourers of Pangi Division has also been relied upon by respondent which
is Mark-A on record and all the persons named above have joined in the year 1996 except at serial
no. 16, 17, 18 and 19, who have joined subsequent to petitioner. There are also several other
workers in the list who had joined in the year 1998. Since respondent had not disputed to have
engaged petitioner in April, 1996, she ought to have been regularized having continuously worked
for 7 years with requisite number of days requiring for regularization and there being no fictional
break as stated above, which would show that other persons who had joined along-with her namely
Up Sain and Man Singh have been regularized but the petitioner has been deprived of her
legitimate right for regularization till now. Although Conservator of Forest department has made
reference for regularization in the year 2013 to the Government ipso facto does not dislodge
petitioner for claiming her seniority and continuity in service from her initial engagement and that
fictional breaks in no manner affect or eclipse her legitimate of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that she had been engaged and disengaged between 1996
to 2010 by giving fictional break she was disengaged from service by the department on
01.11.2013 without any notice as required under Section 25-F (a) of the Act whereas the persons
junior to her have been continuously engaged by department for the whole year who had completed
more than 160 days in a calendar year. In cross-examination, she had denied that in the year 1996
and 2006 she of her own came on duty and for said reasons she could not complete 160 days. RW1
Shri S.P. Sharma while proving his affidavit Ex. RW1/A has admitted in cross-examination that
seniority list was not enclosed with the reply. He has admitted that in Pangi area working of 160
days is to be established to claim benefit of deemed service under Section 25-B of the Act. He has
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admitted that petitioner has been engaged in April, 1996 who had not been issued any appointment
letter. He has denied that petitioner had been deliberately given breaks in the year 2006 but he
could not plead as no corresponding record has been produced by the respondent so as to establish
that on her absence any notice was issued and the version of RW1 that she came and go of her own
from duty cannot be accepted which manifestly appear to be afterthought. Moreover, RW1 has
admitted that as per record no notice was given to petitioner for her absence from duty at any point
of time. As such, the plea of fictional break given to the petitioner in the year 1996 as well as in the
year 2006 get substantiate not only from documentary evidence on record but from testimony of
RW1 as well. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet she cannot be deprived of her legitimate right to seek
seniority as well as continuity in service form her date of joining along-with other persons working
with her. Thus, she cannot be discriminated arbitrarily. In view of aforesaid discussion, it is held
that time to time termination of the services of the petitioner and giving fictional breaks in service
by the respondent during 1996 to 2006 was illegal and unjustified but as the petitioner is still in
employment with the respondent she is to be given benefit of seniority and continuity in service
except back wages in the peculiar circumstances of the case. Issue in question is decided in part in
favour of the petitioner and against the respondent. However, in view of foregoing discussions, it
cannot be stated that the petitioner had no cause of action. Issue no.2 is thus answered in negative
in favour of the petitioner and against the respondent.
ISSUE NO.3
13. This issue was not pressed by ld. Dy.D.A. at the time of arguments which is decided
impressed in favour of petitioner and against respondent.
ISSUE NO.4
14. This issue was not pressed during the course of arguments.
15. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs. Garibu
Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not come in the
way of the workman whose services were illegally terminated by holding that the provisions of
Limitation Act is not applicable to industrial dispute but however, depending upon the facts and
circumstances of each case, the principle of delay and laches have to be seen and applied. In Deepa
Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there was a delay of 12 years.
In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was a delay of 9 years. In CWP
No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar, there was a delay of 14 years. In
Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon’ble
High Court of H.P. that the Labour Court cannot dismiss the claim on the ground of delay and
laches once the same has been referred by the State Government and the Labour Court is bound to
decide the reference which was made by the State Government and same is required to be
adjudicated upon the merits without touching the aspect of delay and laches. The Hon’ble Apex
Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has categorically
held that as such of all those employees, who are entitled to take the benefit of Section 33-C (2)
may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
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“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
16. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF (ISSUE NO.5)
17. For all the aforesaid reasons discussed above it is thus held that the petitioner was in
continuous uninterrupted service with the respondent from the date of her initial engagement. The
breaks given by the respondent being fictional in nature shall have no effect on the seniority and
continuity of service of the petitioner and her seniority shall be reckoned from her initial date of
engagement. Accordingly, claim of petitioner is hereby allowed and reference is accordingly
answered in her favour. The petitioner shall thus be deemed to be in continuous service of
respondent with all consequential benefits except back wages. She shall, however, be considering
for regularization by respondent at the time when her juniors have been regularized as per policy
governing daily wages as framed by State Govt. and operative from time to time.
18. The reference is answered in the aforesaid terms.
19. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
20. File after due completion be consigned to the Record Room.
Announced in the open Court today this 24th day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 218/2013
Date of Institution : 09.12.2013
Date of decision
: 31.03.2015
Shri Mouji Ram s/o Shri Jaimal, r/o Village & Post Office Rohin, Tehsil Palampur, District
Kangra, H.P.
…Petitioner.
Versus
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The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Mouji Ram S/O Sh. Jaimal R/O Village &
Post Office-Rohin, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest Officer,
Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. April, 1994
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
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however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
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bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 12.5.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
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1. Whether retrenchment of the services of Sh. Mouji Ram s/o Sh. Jaimal w.e.f. 31-03-
2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
. . .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. . .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. . .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. . .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. . .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
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any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Mouji Ram figures at serial no.38 who is shown to have been appointed on 01.4.1994
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. April, 1994 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
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that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 12.5.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
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Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
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having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 16.8.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
16.8.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum- Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
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apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 220/2013
Date of Institution : 09.12.2013
Date of decision
: 31.03.2015
Shri Atma Ram s/o Shri Lal Chand, r/o Village Rakkar, P.O. Kural, Tehsil Palampur, Distt.
Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
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For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Atma Ram S/O Sh. Lal Chand, R/O Village-
Rakkar, P.O. Kural, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest Officer,
Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 20.06.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
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Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
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Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Atma Ram s/o Sh. Lal Chand w.e.f. 31-
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. . .OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. . .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. . .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. . . OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. . .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Atma Ram figures at serial no.5 who is shown to have been appointed on 20.6.1993 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. June, 1993 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
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was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 04.7.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
04.7.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum- Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
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by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K. K. SHARMA, PRESIDING JUDGE, LABOUR COURT- CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 225/2013
Date of Institution
: 09.12.2013
Date of decision
: 31.03.2015
Shri Suneel Kumar s/o Shri Kapoor Chand, r/o Village and P.O. Kawari via Nagrota
Bagwan, Teshsil and Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Suneel Kumar S/O Sh. Kapoor Chand, R/O
Village & Post Office Kawari via Nagrota Bagwan, Tehsil & Distt. Kangra by The
Divisional Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following
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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 17.11.1997
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in
pursuance to which the present reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
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employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Suneel Kumar s/o Sh. Kapoor Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. . .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
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3. Whether the present claim petition/reference is not maintainable in the present form?
. . .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
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availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Suneel Kumar figures at serial no.74 who is shown to have been appointed on 03.11.1997
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1997 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. November, 1997
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane
be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
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case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
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and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
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Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 02.6.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
02.6.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
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rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 227/2013
Date of Institution : 09.12.2013
Date of decision
: 31.03.2015
Shri Gagan Singh s/o late Sh. Sant Ram, r/o Village Malodhan, P.O. Alampur, Tehsil
Jasinghpur, Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Gagan Singh S/O late Sh. Sant Ram, R/O
Village-Malodhan, P.O. Alampur, Tehsil Jasinghpur, Distt. Kangra, H.P. by The Divisional
Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.6.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
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daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
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provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Gagan Singh s/o late Sh. Sant Ram w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. . .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. . .OPP.
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3. Whether the present claim petition/reference is not maintainable in the present form?
. . .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. . .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. . .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
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worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Gagan Singh figures at serial no.10 who is shown to have been appointed on 16.7.1993
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. April, 1994 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
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respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
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office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
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Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 16.8.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
16.8.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum- Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
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petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 229/2013
Date of Institution : 09.12.2013
Date of decision
: 31.03.2015
Shri Hari Krishan s/o Sh. Dulo Ram, r/o Village Kachhera, P.O. Mumta, Tehsil & Distt.
Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Hari Krishan S/O Sh. Dulo Ram R/O Village
Kachhera, P.O. Mumta, Tehsil & Distt. Kangra, H.P. by The Divisional Forest Officer,
Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.12.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no. 2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
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employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 12.5.2009 from Divisional Forest Officer
Palampur to petitioner, Ex. PW1/S letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Hari Krishan s/o Sh. Dulo Ram w.e.f. 31-
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. . .OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. . .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. . .OPR
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. . .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged? .
. . .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Hari Krishan figures at serial no. 24 who is shown to have been appointed on 21.12.1993
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. June, 1993 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
12.5.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
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was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 27.6.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
27.6.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
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by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 230/2013
Date of Institution : 09.12.2013
Date of decision : 31.03.2015
Smt. Anita Devi Bakshi w/o late Shri Balbir Singh, r/o Village Mandhol, P.O. Thara,
Baijnath, Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
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For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Smt. Anita Devi Bakshi W/O late Sh. Balbir
Singh, R/O Village Mandhol, P.O. Thara, Tehsil Baijnath, Distt. Kangra, H.P. by The
Divisional Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following
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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that she had been engaged on daily waged basis on muster roll w.e.f. 17.11.1997
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides she had also worked with Bishan Dass
and Sushil Kumar and that she continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to her utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about her retrenchment, she was informed that Government
had decided to close the IGCP Palampur and her services were no more required. It is claimed that
at the time of her unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
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Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed her willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3.
Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but her
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua her illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
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Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and her appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at her sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated her stand as maintained
in the claim petition.
6. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 12.5.2009 from Divisional Forest Officer
Palampur to petitioner, Ex. PW1/S letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved her affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Smt. Anita Devi Bakshi w/o Late Sh. Balbir
Singh w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and
unjustified as alleged?
…OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for? .
..OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. . OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. . .OPR
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. . .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
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the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that her employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Anita Devi Bakshi figures at serial no.75 who is shown to have been appointed on
17.11.1997 and continued to work till 2006 when she was disengaged on account of closure of
project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for
more than 240 days ever since 1997 till 2006 immediately prior to her retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that she had worked on daily wage basis on muster roll w.e.f. November, 1997
without any appointment order or without settlement of any terms and conditions of her service and
that she had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
she had worked with forest department however has denied that she has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but her seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane
be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to her office by the Eco Development Society concerning
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IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to her office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after her retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
12.5.2009 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that her case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for her case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on her termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. she was authorized to do so by Chairman
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who was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation I lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, her termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested her entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving her of the obligation to
pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
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in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that
she was employed as agriculturist. This would also establish that after her retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from her agricultural pursuits
the same were sufficient to maintain her and her family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, she cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for her livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after her retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. she has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 25.7.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by her
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
25.7.2011 after five years of her termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that she along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum- Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
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Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in her evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department she was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of her illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 231/2013
Date of Institution
: 09.12.2013
Date of decision
: 31.03.2015
Shri Jai Ram s/o Shri Nurdhan Ram, r/o Village & P.O. Jandpur, Tehsil Baijnath, Distt.
Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
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For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Jai Ram S/O Sh. Nurdhan Ram, R/O Village
and Post Office Jandpur, Tehsil Baijnath, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. August,
1995 by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
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Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
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Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
letter dated 12.5.2009 from Divisional Forest Officer Palampur to petitioner, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Jai Ram s/o Sh. Nurdhan Ram w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. ..OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Jai Ram figures at serial no.13 who is shown to have been appointed on 01.8.1993 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. August, 1995
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane
be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
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was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 07.3.2013 of Labour Commissioner that demand
notice dated 03.6.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
03.6.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum- Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
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by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 232/2013
Date of Institution
: 09.12.2013
Date of decision
: 31.03.2015
Shri Deep Raj s/o Shri Dhani Ram, r/o Village Ram Nagar, P.O. Tatehal, Tehsil Palampur,
Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Deep Raj S/O Sh. Dhani Ram, R/O Village-
Ram Nagar, P.O. – Tatehal, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. February,
1997 by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
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employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
letter dated 12.5.2009 from Divisional Forest Officer Palampur to petitioner, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Deep Raj s/o Sh. Dhani Ram w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
…OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Deep Raj figures at serial no.69 who is shown to have been appointed on 1.2.1997 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1997 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. February, 1997
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane
be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
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was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 30.8.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
30.8.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
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by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 234/2013
Date of Institution : 09.12.2013
Date of decision : 31.03.2015
Shri Balwant Singh s/o Shri Dalip Chand, r/o Village Gharoon, P.O. Dehan, Tehsil
Palampur, Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Balwant Singh S/O Sh. Dalip Chand, R/O
Village Gharoon, P.O. Dehan, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional
Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 1997 by
forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
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employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Balwant Singh s/o Sh. Dalip Chand w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
…OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Balwant Singh figures at serial no.4 of additional list who is shown to have been
appointed on 16.9.1999 and continued to work till 2006 when he was disengaged on account of
closure of project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had
worked for more than 240 days ever since 1999 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. 1994 without any
appointment order or without settlement of any terms and conditions of his service and that he had
been deputed by respondent vide verbal order to work in IGCP Palampur which was under control
of forest department of State Government. Cross-examination of PW1 revealed that he had worked
with forest department however has denied that he has been appointed to work in project. Since
records produced by parties clearly revealed that engagement of petitioner on muster roll basis by
the forest department but his seniority has been reflected in records of IGCP Palampur and that
retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be noticed
that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S. Yadav the
then Divisional Forest Officer, Palampur has specifically admitted in cross-examination that no
notice was given to petitioner and at the same time, no compensation was paid to the petitioner as
per records handed over to his office by the Eco Development Society concerning IGCP Palampur.
Consequently, RW1 has clarified on oath by admitting that on closure of the project, record in
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question was handed over to his office in which no copy of appointment order existed in favour of
the petitioner which establishes that IGCP Palampur had never appointed petitioner or that
petitioner was engaged only to work with IGCP Palampur as contended by respondent. As such,
from the testimony of PW1 coupled with evidence on record as stated and case law referred above
this court is left with no option but to hold that there existed relationship of workman and employer
between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
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was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
21. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
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raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 237/2013
Date of Institution : 09.12.2013
Date of decision : 31.03.2015
Shri Ashok Kumar s/o late Sh. Amin Chand Rana, r/o VPO Nagehar, Tehsil Baijnath, Distt.
Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
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1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Ahsok Kumar S/O late Sh. Amin Chand Rana,
R/O VPO Nagehar, Tehsil Baijnath, Distt. Kangra, H.P. by The Divisional Forest Officer,
Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. April, 1995
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
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been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act and
the same was liable to be set aside. Accordingly, prayer has been made to set aside illegal
retrenchment order dated 31.3.2006 with further direction to respondent to reengage the services of
petitioner with full back wages, seniority, continuity with all consequential service benefits
throughout with costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
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asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
letter dated 12.5.2009 from Divisional Forest Officer Palampur to petitioner, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Ashok Kumar s/o Sh. Amin Chand w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
…OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
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4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
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13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Ashok Kumar figures at serial no.51 who is shown to have been appointed on 1.4.1995
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1995 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. April, 1995 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It cane be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
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as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
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Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal.
18. Ld. Authorized Representative has relied upon the judgment of Hon’ble Apex Court
reported in 2015 LLR 225 titled as Jasmer Singh vs. State of Haryana & Anr. in which Division
Bench of the Apex Court has held in unequivocal terms that a workman is entitled to reinstatement
with full back wages when termination order is void ab-initio. It was specifically held by the
Hon’ble Apex Court that if the workman had completed 240 days in continuous service, preceding
12 calendar months, his termination without compliance of the provisions of Section 25-F of the
Act makes the retrenchment/termination illegal entitling workman to reinstatement with back
wages. It has come in the evidence that petitioner has been retrenched without notice and
compensation and therefore the order of termination would be void ab-initio as it has been done
without compliance of Section 25-F of the Act. I have carefully gone through the judgment of
Hon’ble Apex Court in the above stated judgment the Hon’ble Apex Court has referred to its
former judgment titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of the judgment of (2013) that
“if the employer wants to deny back wages to the employee or contested his entitlement to get
consequential benefits, then it is for him/her to specifically plead and prove that during intervening
period the employee was gainfully employed. It was held that benefit of back wages to an
employee who had suffered due to an illegal act of the employer would amount to indirectly
punishing the concerned employee and rewarding the employer by relieving him of the obligation
to pay back wages including emoluments”.
19. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
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the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
20. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
21. Ld. Dy. D.A. representing respondent has vehemently contended that there is
inordinate delay in raising industrial dispute. He has referred to the date of retrenchment which is
31st March, 2006. It is evident from order dated 04.3.2013 of Labour Commissioner that demand
notice dated 04.6.2011 was moved after about five years which was observed to be prima facie
bogus and frivolous. It remains the case of the petitioner that CWP no. 7149/2013 was filed by him
as against the order of Labour Commissioner and vide order dated 19.9.2013 appropriate Govt. i.e.
Labour Commissioner had been directed to make reference to the Labour Court in pursuance to
which the present reference has been received although demand notice was raised by petitioner on
04.6.2011 after five years of his termination but there is sufficient explanation for not raising the
industrial dispute earlier or raising demand notice due to the fact that the petitioner was being
assured time and again that he along-with other retrenched workmen would be absorbed in the
government departments. In 2007 LHLJ 903 Hon’ble High Court of H.P. (Bhatag Ram’s case) has
held that delay in raising dispute may be considered by Court at the time of granting final relief but
in various other judgments even longer delay has been condoned. In Divisional Manager, HPFC
& another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was
condoned and the Hon’ble High Court has held that principle of Limitation Act is not applicable to
the industrial dispute. However, depending upon the facts and circumstances of each case the
principle of delay and laches have to be seen and applied. Similarly, the Hon’ble Apex Court in
Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and
Another, (1999) 6 SCC 82 specifically held that the principle of Limitation Act, 1963 did not
apply to the proceeding under the Industrial Disputes Act. It was observed that the relief under
Industrial Disputes Act cannot be denied merely on the ground of delay. The plea of delay if raised
by employer is required to be proved as a matter of fact and that no reference made to Labour Court
can be generally questioned on the ground of delay alone. In the case in hand, no material has been
placed on record by the respondent establishing that there was inordinate delay on the part of the
petitioner in raising the dispute due to which any prejudice had been caused to the respondent
rather petitioner in his evidence has highlighted and proved material facts establishing that on
account of repeated assurance of respondent and the government as stated in foregoing paragraphs
industrial dispute was not raised by petitioner immediately and finally raised when despite repeated
assurance to absorb the petitioner in govt. department he was not offered any appointment or
absorbed by the government. Thus, the petition filed by petitioner cannot be stated to be bad on
vice of delay and laches. This issue is accordingly answered in negative against respondent and in
favour of petitioner.
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RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 129/2014
Date of Institution : 06.3.2014
Date of decision : 31.03.2015
Smt. Sunita Devi w/o late Sh. Rajesh Kumar, r/o Village Kandhi, P.O. Sai, Thural, Tehsil
Palampur, Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
...Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Smt. Sunita Devi W/O Late Sh. Rajesh Kumar
R/O Village-Kandhi, P.O. Sai Thuran, Tehsil Palampur, Distt. Kangra, (H.P.) w.e.f.
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31.3.2006 by the Eco Development Society/Indo German Changer Project (I.G.C.P.),
Palampur without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that she had been engaged on daily waged basis on muster roll w.e.f. May, 1998
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides she had also worked with Bishan Dass
and Sushil Kumar and that she continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to her utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about her retrenchment, she was informed that Government
had decided to close the IGCP Palampur and her services were no more required. It is claimed that
at the time of her unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed her willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
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3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but her
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua her illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and her appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at her sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
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5. The petitioner filed rejoinder to reply by respondent, reiterated her stand as maintained
in the claim petition.
6. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area Ex. PW1/S
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved her affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Smt. Sunita Devi w/o late Sh. Rajesh Kumar
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
…OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
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10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
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Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that her employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Sunita Devi figures at serial no.79 who is shown to have been appointed on 08.6.1998
and continued to work till 2006 when she was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1998 till 2006 immediately prior to her retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that she had worked on daily wage basis on muster roll w.e.f. 1993 without any
appointment order or without settlement of any terms and conditions of her service and that she had
been deputed by respondent vide verbal order to work in IGCP Palampur which was under control
of forest department of State Government. Cross-examination of PW1 revealed that she had worked
with forest department however has denied that she has been appointed to work in project. Since
records produced by parties clearly revealed that engagement of petitioner on muster roll basis by
the forest department but her seniority has been reflected in records of IGCP Palampur and that
retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be noticed
that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S. Yadav the
then Divisional Forest Officer, Palampur has specifically admitted in cross-examination that no
notice was given to petitioner and at the same time, no compensation was paid to the petitioner as
per records handed over to her office by the Eco Development Society concerning IGCP Palampur.
Consequently, RW1 has clarified on oath by admitting that on closure of the project, record in
question was handed over to her office in which no copy of appointment order existed in favour of
the petitioner which establishes that IGCP Palampur had never appointed petitioner or that
petitioner was engaged only to work with IGCP Palampur as contended by respondent. As such,
from the testimony of PW1 coupled with evidence on record as stated and case law referred above
this court is left with no option but to hold that there existed relationship of workman and employer
between the parties. Moreover, no official of Eco-Development Society or IGCP has been
examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after her retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
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stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 10.3.2009 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that her case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for her case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on her termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. she was authorized to do so by Chairman
who was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
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when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. whch is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, her
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested her entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving her of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that
she was employed as agriculturist. This would also establish that after her retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from her
agricultural pursuits, the same were sufficient to maintain her and her family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, she cannot be treated to be engaged in gainful
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employment. Since the petitioner had income from agriculture pursuits for her livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after her retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of her illegal termination except
back wages. The parties, however, shall bear their own costs.
22. The reference is answered in the aforesaid terms.
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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 31st day of March, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 259/2012
Date of Institution : 15.06.2012
Date of decision
: 24.04.2015
Shri Jagat Ram s/o Shri Ghassitu Ram, r/o VPO Guga Saloh, Tehsil Palampur, Distt.
Kangra, H.P.
…Petitioner.
Versus
1. The Conservator of Forest, Forest Circle, Dharamshala, Distt. Kangra, H.P.
2. The Divisional Forest Officer, Forest Division Palampur, Distt. Kangra, H.P.
….Respondents.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Sh. Jagat Ram S/O Sh. Ghassitu Ram, VPO Guga
saloh, Tehsil Palampur, Distt. Kangra, H.P. by the Conservator of Forest, Forest Circle,
Dharamshala, Distt. Kangra, H.P. during the year 2008 without complying the provisions of
the Industrial Disputes Act, 1947, as alleged by the workman, is legal and justified? If not,
to what amount of back wages, seniority, past service benefits & compensation the above
aggrieved workman is entitled to from above employer?”
2. After the receipt of the abovestated reference, a corrigendum dated 17th June, 2013 was
received from the appropriate government which reads as under:
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“The Conservator of Forest, Forest Circle, Dharamshala, Distt. Kangra, H.P.” be read as
“The Conservator of Forest, Forest Circle, Dharamshala, Distt. Kangra, H.P. and The
Divisional Forest Officer, Forest Division Palampur, Distt. Kangra, H.P.”
3. Averments made in the claim petition under Section 10 of Industrial Disputes Act
(hereinafter referred to as the “Act”) filed by the petitioner in pursuance to reference received from
appropriate government vide notification dated 29.5.2012 and thereafter corrigendum dated
17.6.2013 reveal that the petitioner had been engaged by the respondent in September, 1997 on
muster roll without any appointment letter who had continuously worked upto December, 1999.
The grievance of the petitioner remains that he had completed more than 240 days in the year 1998
and 1999 respectively as in the year 1998 he had completed 354 days and 340 days in 1999 and
was duly covered under Section 25-B of the Act but thereafter the service conditions of petitioner
had been changed by respondent as he had been disengaged by respondent department giving him
fictional breaks so that he did not complete 240 days in each calendar year and this practice had
been adopted by department upto the year 2004 before terminating his services in 2004. It is
claimed that consequent upon termination of his services, petitioner raised demand for his
reinstatement vide representation but conciliation failed however dispute was not referred to this
Court as the same was declined by competent authority vide letter dated 25.9.2007 on the ground
that petitioner had not completed 240 days in last 12 calendar year months preceding his
termination. It further remains the case of the petitioner that in September 2008 he had been again
provided muster roll by department where he continued to work uninterruptedly till
November/December, 2008. Again the services of petitioner are stated to have been terminated by
department in the year 2008 and before termination no show cause notice was given and at the
same time, no inquiry was conducted. It further remains the case of petitioner that petitioner was
neither given notice period for retrenchment nor any compensation amount which was required to
be paid to petitioner within the ambit of Section 25-F of the Act. The petitioner claimed to have
represented several times to respondent department to engage him without any breaks vide his
representation dated 26.8.2004, 23.9.2004, 25.6.2005 and 28.7.2005 but despite that his services
had been terminated and thereafter he had again represented to department on 30.12.2008 and
30.3.2009 but he had not been reengaged for which he raised demand notice qua his illegal
termination on 29.5.2009 and revised demand notice dated 6.10.2009 which was forwarded to
Labour-cum-Conciliation Officer for necessary action and again the failure report was submitted
but at this stage appropriate government had referred the dispute of the petitioner for adjudication
before this court vide notification dated 29.5.2012. It is alleged that in the said notification,
appropriate government had not made the Divisional Forest Officer Palampur as party and issue
with regard to time to time termination and artificial breaks in service has not been mentioned by
the government for which his request was sent for amendment of corrigendum which was allowed
to the extent that the Divisional Forest Officer Palampur be impleaded as party along-with
Conservator of Forest but request for incorporation of fictional break from time to time termination
was turned down. The grievances of petitioner also remains that at the time of disengagement of his
services in the year 2008, department had not followed the principle of ‘last come first go’ since
persons junior to petitioner had been retained in service namely S/Sh. Prem Singh, Sanjay Kumar
and Subhash Chand and thus respondent while retaining these above named officials and
terminating the services of petitioner ignored mandate of Section 25-G of the Act. It is also claimed
that the action of respondent department in giving fictional breaks to petitioner from the year 2000
to 2008 and finally terminating his services in 2008 was illegal and unjustified besides due to
fictional breaks and termination from services, the petitioner could not remain gainfully employed
and thus entitled him to be reinstated with full back wages, seniority and continuity in service.
4. Respondents no. 1 & 2 filed joint reply contested the claim petition inter-alia taken
preliminary objections qua maintainability, delay and laches, petition being bad on account of act
and conduct, being bad on account of nonjoinder and mis-joinder of parties. It is claimed that
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petitioner was engaged by Sourabh Van Vihar Society Palampur in the month of September, 2008
where he worked till November, 2008 on bill basis. It further remains the case of respondents that
petitioner had been given seasonal work and was paid by the said society out of the funds generated
by it. On merits admitted that petitioner was employed on daily waged basis from September, 1997
to 2004 for seasonal forestry work with respondents but as he was engaged afresh with Sourabh
Van Vihar Society in 2008, he cannot claim continuity in service from period he worked with
respondent. It is alleged that demand notice dated 26.7.2005, the petitioner had raised industrial
dispute despite that termination of his services by respondent no.2 in the year 2004 but the same
was rejected by appropriate government vide letter dated 25.9.2007. It is claimed that Sourabh Van
Vihar Society was independent co-operative body constituted for the purposes to develop and
promote eco tourism work and from its bye-laws respondents no.1 as Chairman of governing body
in ex-officio capacity besides the society in question was being run by executive committee and
thus any action taken by respondent in their ex-officio capacity qua the affairs of the society cannot
be termed as action taken with or for the functioning of the state/forest department. Thus, it is
asserted that in view of fresh engagement of petitioner in the year 2008 by society, he cannot be
allowed to seek continuity of service with the period which he had served with the respondent no.2
from September, 1997 to March, 2004. In so far as employees who have been retained in service
and regularized as claimed in the petition by petitioner, respondents have claimed by stating that
none of these workers had worked with Sourabh Van Vihar Society Palampur. Moreover, the claim
of the petitioner for reengagement with the respondent no.2 has already been rejected by
appropriate government on 25.9.2007 being frivolous and vexatious. So far as petitioner being not
gainfully employed, respondent in its reply has stated that petitioner was employed as private driver
and was also an agriculturist. Accordingly, petition was sought to be dismissed.
5. The petitioner filed rejoinder to reply filed by respondent, reiterated his stand as
maintained in the claim petition.
6. To prove his case, petitioner had stepped into the witness box as PW1 sworn in
affidavit Ex. PW1/A under Order 18 Rule 4 CPC, tendered/proved Ex. PW1/B letter dated
25.12.1999 of Divisional Forest Officer Palampur to petitioner, Mark-A, Mark-B and Mark-C
which are the copies of legal notices dated 26.8.2004, 23.9.2004 and 30.12.2008 respectively. Ex.
PW1/C, which is copy of demand notice report under section 12(4) of Industrial Disputes Act,
1947, Ex. PW1/D letter dated 30th March, 2009 from petitioner to Divisional Forest Officer
Palampur, Mark-D govt. letter dated 16.5.2009 of Divisional Forest Officer Palampur to petitioner,
Mark –E is letter dated 28.5.2009 and Mark-F is a letter dated 29.5.2009 from petitioner to
Divisional Forest Officer Palampur. Ex. PW1/E registered letter dated 6.10.2009 which is
continuation of demand notice dated 29.5.2009 and revised demand notice under Section 2-A of
Industrial Disputes Act and closed the evidence.
7. On the other hand, repudiating the evidence led by petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer, Plamapur who tendered/proved his
affidavit under Order 18 Rule 4 CPC. Ex. RW1/B copy of mandays chart of petitioner, Ex. RW1/C
Copy of letter dated 26.7.2005, Ex. RW1/D copy of application under Section 10(2), Ex. RW1/E
copy of letter dated 25.9.2007, Ex. RW1/F copy of registration no.42 dated 23.6.2007 and
Ex.RW1/G is the seniority list and closed the evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
01.03.2014 for determination.
6. Whether the termination of the services of the petitioner by the respondent during the
year 2008 is/was illegal and unjustified as alleged?
... OPP.
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7. Whether the claim petition is not maintainable in the present form?
…OPR.
8. Whether the claim petition is hit by vice of delay and laches as alleged. If so, its effect?
…OPR.
9. Whether the petitioner is estopped from filing the claim petition by his act and conduct
as alleged. If so, its effect?
...OPR.
10. Whether the petition is bad for non-joinder of the necessary parties as alleged. If so, its
effect?
…OPR.
11. Whether the petitioner has suppressed the true and material facts from the Court as
alleged. If so, its effect?
…OPR.
12. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Discussed
Issue No.2 : No
Issue No.3 : No
Issue No.4 : No
Issue No.5 : No
Issue No.6 : No
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
11. At the outset, it would be apt to mention here that ld. Authorized
Representative/counsel for the petitioner vide separate statement dated 24.4.2015 on record did not
press the plea of time to time break in service i.e. fictional break and that petitioner did not work
with respondent from 2004 to 2008 and this fact does not find mentioned in the reference received
from appropriate government. Since petitioner does not press the plea of alleged fictional break
having been given by respondent, the same plea merits rejection.
12. In so far as the plea of petitioner on the point of respondents department having not
followed the principle of ‘last come first go’ envisaged under Section 25-G of the Act is concerned,
suffice would be to state here that respondent department had for unexplained and unforeseen
reasons had retained junior workmen to that of petitioner without any opportunity of being heard to
petitioner. In this regard, reliance is placed on the seniority list of daily waged workers as stood on
31st December, 2007 which is Ex. RW1/G. A bare glance on the above said list would reveal that
at serial no.9 one Prem Singh s/o Khapu Ram is shown to be working as on 31.12.2007 who was
appointed of 01.6.1998. Similarly at serial no.10 Sanjay Kumar s/o Raseela Ram is also shown to
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be junior to petitioner having been appointed on 01.7.1998 and working till 31.12.2007. Similarly
at serial no.14 Subhash Chand s/o Pritam Chand is shown to have been appointed on 1.3.1998 who
was also working till 31.12.2007. It is admitted case of parties that petitioner had joined in
September, 1997 whereas abovenamed employees had joined in 1998. Thus, all the above named
daily waged workers are shown to have joined service in 1998 and were working in 2007 as well
which squarely show that respondent department while terminating the services of petitioner in
2008 had ignored the mandate of Section 25-G of the Act which postulates that the workman who
had come in last has to go first in the matter of retrenchment under Section 25-G of the Act.
Certainly, workmen figuring at serial nos. 9, 10, 14 were not retreched who were junior in service
to petitioner. When questioned, RW1 Shri B.S. Yadav the then Divisional Forest Officer and
respondent in this case had shown his ignorance qua workmen shown at serial nos. 9, 10 and 14 to
be still working with respondent besides he has also shown ignorance on the point of these
workmen having been regularized. Significantly, Divisional Forest Officer as witness has admitted
list of workmen who had been regularized has not been filed by him. Thus, from cross-examination
of RW1 it can be observed that respondent had not only deliberately suppressed true fact from court
of daily waged workers at serial nos. 9, 10 and 14 to be still working but also that no
correspondence was made with the petitioner by respondent when appointment of said workers was
being made. Be it stated that there is no iota of evidence on record produced by the respondent that
it had issued any notice to petitioner calling upon him to join while engaging/appointing employees
in 1998 as reflected in Ex. RW1/G more so when it is the admitted case of petitioner that he was
appointed in September, 1997 on the muster roll basis without issuance of any appointment letter.
13. The case of respondent further remains that petitioner was seasonal worker and was
not entitled to statutory protection envisaged Section 25-G of the Act. The plea of respondent being
seasonal worker gets falsified form respondent own document which showed that petitioner had
worked from 1997 to 2004. In the year 1997 he had worked for 122 days, 354 days in 1998, 340
days in 1999, 138 days in 2000, 154 days in 2001, 213 days in 2003 and 52 days in 2004. Since
petitioner has worked for more than 240 days in the year 1998 as well as in 1999 as he had worked
for even more than 300 days the plea of respondent that the petitioner was seasonal worker is liable
to be rejected. Otherwise also, there is no notification or office order issued by competent authority
which would establish that workers working with respondents would be seasonal worker within the
meaning of Industrial Disputes Act, 1947.
14. Another plea of the respondent remain that petitioner was not disengaged or terminated
from his services rather he had of his own abandoned the job and used to go and come on his
whims and fancies. As such, petitioner himself has abandoned the job who was neither retrenched
nor his services were ever terminated. RW1 has also testified on oath that petitioner had left the job
of daily waged worker while working with respondent and joined Sourabh Van Vihar Society.
Thus, plea of respondent primarily remains that from 2004 onwards till the petitioner joined in
Sourabh Van Vihar Society, he had willfully abandoned the work with respondent but there is
nothing on record to show that any show cause notice was ever issued to the petitioner or that he
was asked to report for duty or any explanation for his such absence was called. It is settled law that
abandonment has to be established by leading evidence which is a question of fact and has to be
determined in the light of surrounding circumstances of each case, as has been held by our own
Hon’ble High Court in a case titled State of H.P. vs. Bhatag Ram and Anr. reported in (2007
LHLJ 903). Significantly, respondent did not lead any evidence to prove that petitioner had
abandoned job in hand except bald allegation that he of his own had joined Sourabh Van Vihar
Society. Thus, in absence of any reliable cogent and convincing evidence qua the plea of
abandonment, this court is left with no option to hold that it was not petitioner who abandoned the
job rather it was respondent who had terminated/retrenched the services of petitioner.
15. Ld. Authorized Representative for petitioner has contended with vehemence that there
is no requirement of petitioner having completed 240 days for the applicability of Section 25-G of
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the Act. He has contended that working of 240 days is relevant when petitioner is claiming
protection under Section 25-F of the Act whereas in this case, petitioner has given plea up of
fictional break as is evident from statement of Authorized Representative dated 24.4.2015 on
record and resultantly plea of having not completed 240 days ceases to be relevant in so far as
applicability of Section 25-G of Industrial Disputes Act is concerned. RW1 has testified on oath
that seniority list of workmen had not been produced and so far as seniority list Ex. RW1/G as it
stood on 31.12.2007 is concerned, the name of petitioner did not figure in it for the reason best
known to respondent who had worked till 2008 as stated by him but RW1 in his cross-examination
has admitted that petitioner was appointed on muster roll basis. It was thus necessary that name of
petitioner ought to have been included in the seniority list and by not incorporating name of the
petitioner in muster roll, respondent had certainly failed to comply the mandate of Sections 25-G
and 25-H of the Act since the procedure adopted by respondent has resulted in workman being
disengaged not in good faith but in the colourable exercise of the employee’s rights. It is further an
exercise to employ/ workmen on casual and temporary basis while continuing them for years with
the object of depriving them of the status and privileges of workmen which is certainly unfair
labour practice envisaged under Section (ra), read with the Vth schedule to the Act. It was so held
in judgment of Hon’ble Apex Court in 2015 LLR 337 titled as Mackinon Machenize &
Company Ltd. vs. Mackinon Employees’ Union in which the Hon’ble Apex Court has held that
no seniority list or non displaying of seniority list is breach of Section 25-G of the Act justifying
retrenchment of workman to be illegal. PW1 petitioner Jagat Ram stepping into witness box
deposed on oath in which he claimed to be entitled to protection envisaged under Section 25-G of
the Act. Since the respondent had failed to notify petitioner while engaging subsequently daily
waged workers at serial nos. 9, 10 and 14 as stated in the foregoing paragraphs, the respondent had
certainly ignored the rights of petitioner who had worked for about eight years with respondent as
stated above. It is also come in the evidence that even Sourabh Van Vihar Society Palampur
worked under respondent nos. 1 and 2 where petitioner had worked for merely 52 days in the year
2008 as per the mandays chart Ex. RW1/G. As such, for the aforesaid reason it is held that
petitioner did not abandon his job rather his services were disengaged in violation of provisions of
Section 25-G of the Act. Consequently, respondent are to be directed to reengage petitioner
forthwith. Petitioner has failed to discharge initial onus of proof that he was not gainfully employed
during the period of the forced idleness and as such no back wages are being ordered in favour of
the petitioner who was however entitled to seniority and continuity in service from the date of his
illegal termination. Issue in hand is decided accordingly.
ISSUE NO.2
16. On non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D. A. for respondents did not press this plea at the time of arguments which is
decided unpressed. Otherwise also, from pleadings and evidence on record no inference of claim
petition being not maintainable could be raised. As such, issue in hand is answered negative against
the respondent and in favour of petitioner.
ISSUE NO.3
17. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad on account of delay and laches. The pleadings and evidence on record show
that the petitioner had been retrenched in 2004 who was consequently reengaged in Sourabh Van
Vihar Society in 2008 but has raised industrial dispute much later. Ld. Dy. D.A. has made futile
attempt to state that delay in raising industrial dispute which ought to have been raised in 2004
immediately on his retrenchment. To ascertain correctness of plea so raised, it would be relevant to
consider the facts mentioned in the claim petition. It is alleged in para 6 of the claim petition that
petitioner had made representations dated 26.8.2004, 23.9.2004, 25.6.2005 and 28.7.2005 when he
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raised demand notice on 29.5.2009 and revised demand notice on 6.10.2009 the copy of the same
was forwarded to Labour-cum-Conciliation Officer for settlement. It is also alleged in this para that
appropriate government had referred the dispute for adjudication vide notification dated 29.5.2012
which has been registered by this court as reference no.259 of 2012. These facts apparently show
that from 2004 and 2005 the petitioner continued representing as stated above and thereafter he
raised demand notice o 29.5.2009 and 6.10.2009 respectively as stated in the reference made by the
appropriate government vide report no.2239 dated 8.2.2011 and consequently referred the matter to
this court vide notification in the year 2012. Thus delay in issuing first demand notice in 2009 has
been satisfactory explained as earlier petitioner had made various representations as referred to in
his claim petition. Ld. authorized officer on the other hand contended that delay and laches may be
relevant circumstances to be seen by the court while granting the compensation but the claim
cannot be denied merely on the ground of delay as has been held in case titled as Ajayab Singh vs.
Sirhind Co-operative Marketing-cum-Processing Society Limited and Another reported in
(1999) 6 SCC 82. In this judgment, Hon’ble Apex Court has held as under:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
18. Applying the ratio of judgment of the said case to the present one, claim petition
cannot be stated to be bad on the account of delay and laches. Issue no.3 is answered negative in
favour of the petitioner and against the respondent.
ISSUE NO. 4
19. The respondent in their reply had raised the plea of estoppel against the petitioner from
filing the claim petition by his act and conduct without any exact stipulation to this effect. Thus, the
pleadings of the respondent being vague merits rejection. Accordingly, it is held that the petitioner
is not estoppted from the filing of his claim petition by his act and conduct. Issue no. 4 is answered
in negative against the respondent and in favour of petitioner.
ISSUE NO. 5
20. Ld. Dy. D.A. for the respondent department vehemently argued that the claim petition
is bad for non-joinder of necessary parties. There is nothing in the pleadings of the respondent as to
who was essential party to be impleaded as corespondent. Be it stated here that initially in view of
reference only one respondent was made party and on subsequent reference for corrigendum
received from the appropriate government Conservator of Forest, Forest Circle, Dharamshala and
The Divisional Forest Officer, Forest Division Palampur were made parties. Since Sourabh Van
Vihar Society which is functionary body under the State/respondent the same was not required to
be made party more so when the claim petition gets eclipsed from statement of authorized
representative dated 24.4.2015 in which it is stated that petitioner had worked till 2004 with the
respondent nos. 1 & 2. That being so, impleading of Sourabh Van Vihar Society as co-respondent
was not necessary for adjudication of dispute inter-se parties. As such, claim petition is held to be
not bad for non-joinder of necessary parties. Issue no. 5 is answered in negative in favour of
petitioner and against respondent.
ISSUE NO. 6
21. This issue was not pressed by ld. Dy.D.A. at the time of arguments which is decided
unpressed in favour of petitioner and against respondents.
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RELIEF
22. As a sequel to my findings on the issues no. 1 to 6, the reference/claim petition is
allowed in part and respondents are hereby directed to reengage the petitioner forthwith who shall
be entitled to seniority and continuity in service from the date of his illegal termination i.e. from the
year 2008 except back wages. The parties however shall bear their own costs.
23. The reference is answered in the aforesaid terms.
24. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
25. File after due completion be consigned to the Record Room.
Announced in the open Court today this 24th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 139 / 2013
Sh. Prem Chand son of Sh. Mahant Ram r/o Village Kaloga, P.O. Mandap, Tehsil
Sarkaghat, Distt. Mandi, H.P.
….Petitioner.
Versus
The Executive Engineer, Himachal Pradesh State Electricity Board, Division Dharampur,
Distt. Mandi, H.P.
...Respondent.
25-04-2015 Present
: None for the petitioner.
Sh. B. K Sood, Adv. csl. for the respondent.
RW Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division, HPSEB Ltd.
Dharampur, Distt. Mandi is present and has filed affidavit. Case called several times but none has
appeared on behalf of the petitioner who was present on previous dates of hearing. It is 11.30 A.M.
Be awaited and put up after lunch hours at 2.30 PM.
By order,
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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25-04-2015 Present : None for the petitioner.
Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division,
HPSEB Ltd. Dharampur in person along-with Sh. Prithvi Pal Sharma, S.D.O., HPSEB,
Tihra. for the respondent. Case has been called again several times but none has appeared on behalf
of the petitioner. It is 2.38 P.M. None appearance of petitioner or his ld. counsel today despite
knowledge of hearing of case is indicative of the fact that petitioner is not interested to pursue
present reference and accordingly reference is disposed off for nonprosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
25-04-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 140/ 2013
Sh. Hem Singh son of Sh. Bhutoo Ram, r/o Village Kaloga, P.O. Mandap, Tehsil Sarkaghat,
Distt. Mandi, H.P.
...Petitioner.
Versus
The Executive Engineer, Himachal Pradesh State Electricity Board, Division Dharampur,
Distt. Mandi, H.P.
...Respondent.
25-04-2015 Present : None for the petitioner.
Sh. B.K Sood, Adv. csl. for the respondent.
RW Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division, HPSEB Ltd.
Dharampur, Distt. Mandi is present and has filed affidavit. Case called several times but none has
appeared on behalf of the petitioner who was present on previous dates of hearing. It is 11.40 A.M.
Be awaited and put up after lunch hours at 2.40 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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25-04-2015 Present: None for the petitioner.
Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division, HPSEB Ltd. Dharampur in
person along-with Sh. Prithvi Pal Sharma, S.D.O., HPSEB, Tihra. for the respondent. Case has
been called again several times but none has appeared on behalf of the petitioner. It is 2.43 P.M.
None appearance of petitioner or his ld. counsel today despite knowledge of hearing of case is
indicative of the fact that petitioner is not interested to pursue present reference and accordingly
reference is disposed off for nonprosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
25-04-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 141 / 2013
Sh. Hari Chand son of Sh. Parma Ram, r/o Village Kaloga, P.O. Mandap, Tehsil Sarkaghat,
Distt. Mandi, H.P.
….Petitioner.
Versus
The Executive Engineer, Himachal Pradesh State Electricity Board, Division Dharampur,
Distt. Mandi, H.P.
.….Respondent.
25-04-2015 Present: None for the petitioner.
Sh. B. K. Sood, Adv. csl. for the respondent.
RW Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division, HPSEB Ltd.
Dharampur, Distt. Mandi is present and has filed affidavit. Case called several times but none has
appeared on behalf of the petitioner who was present on previous dates of hearing. It is 11.35 A.M.
Be awaited and put up after lunch hours at 2.35 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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25-04-2015 Present: None for the petitioner.
Sh. Mahinder Singh, Sr.Executive Engineer, Electrical Division, HPSEB Ltd. Dharampur in
person along-with Sh. Prithvi Pal Sharma, S.D.O., HPSEB, Tihra for the respondent.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.40 P.M. None appearance of petitioner or his ld. counsel today despite knowledge of hearing
of case is indicative of the fact that petitioner is not interested to pursue present reference and
accordingly reference is disposed off for nonprosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
25-04-2015
K. K. SHARMA
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 109/2012
Date of Institution : 06.1.2012
Date of decision
: 29.04.2015
Shri Om Prakash s/o Shri Bhadru, r/o Village and P.O. Jhamer, Tehsil Joginder Nagar,
District Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of services/giving breaks of Shri Om Prakash S/O Shri Bhadru,
Village and P.O. Jhamer, Tehsil Joginder Nagar, District Mandi, H.P. by the Executive
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Engineer, B&R Division, H.P.P.W.D Joginder Nagar, District Mandi, H.P. from time to
time during year, 1998 to August, 2007, without complying with provisions of Section 25-
F, G & H of the Industrial Disputes Act, 1947, as the abandonments are not proved but
admitting non-availability of work during certain periods, as per policy of the Government
and availability of funds and continuous employment of certain juniors, is legal and
justified? If not, what amount back wages, seniority, past service benefits and compensation
the above worker is entitled for the above mentioned period from the above employer?”
2. Brief facts as set up in the claim petition reveal that petitioner was engaged as daily
rated beldar by respondent w.e.f. 0.1.6.1998 in its National Highway Division, Joginder Nagar and
later he (petitioner) worked with the respondent in the newly created HPPWD Division in 2004 but
he was given fictional breaks from time to time from his initial engagement till 31.7.2007. It is
alleged that he was issued muster rolls for 15 days in a month, though the work was available for
the entire month but, his juniors namely Dalip Singh, Gautam Singh, Geeta Devi, Pradeep Kumar,
Kishhori Lal, Sanjay Kumar, Bhag Mal, Nihal Chand, Anil Kumar and Chanchal. were not given
such breaks and they were allowed to complete 240 days in each calendar year and the above
named juniors have now been regularized. It is alleged that the respondent has stopped giving
fictional breaks to the petitioner from 01.9.2007 and thereafter, the petitioner has completed 240
days in each calendar year. Therefore, there has been violation of the provisions of Sections 25-F,
25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act, for short).
The petitioner thus has filed a demand notice with the labour department but matter could not be
reconciled as the petitioner has prayed for giving him the benefit of seniority, regularization and
back wages etc.
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections of maintainability, petition being bad for non- joinder of necessary parties and claim
petition being bad on account of delay and laches. On merits, engagement of the petitioner from
January, 1999 is admitted. The allegation of giving fictional breaks up-to 31.8.2007 has been
specifically denied. It is alleged that the work was made available to the petitioner as per the
requirement and availability of the funds from time to time as per mandays chart annexure-RII and
R-III and that all the workers in the annexure R-III were senior to the petitioner who have since
been regularized. It is further alleged that the disengagement of the workmen on the availability of
the funds and the work was strictly in accordance with the policy of ‘last come first go’ and thus
allegation of violation of Section 25-F, 25-G and 25-H of the Industrial Disputes Act has been
specifically denied. Thus, relying upon the plea of reference of regularization of petitioner, cause of
action as pleaded in the claim petition filed by petitioner is denied and the petition is sought to be
dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B and copy of letter dated 14th September, 2007 of
Pr. Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks. On the other hand, repudiating the evidence led by petitioner, respondent had
examined Shri B.S. Barwal the then Executive Engineer, HPPWD (B&R) Division Joginder Nagar
as RW1 tendered Ex. RW1/A regarding creation of PWD Division (B&R) Joginder Nagar in the
year 2004, Ex. RW1/C year-wise working days of daily wage Beldar and closed evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed by my ld. predecessor on
26.9.2012 for determination:
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1. Whether the termination of the services/giving fictional breaks in service to the
petitioner by the respondent from time to time from the year 1998 to August, 2007 is
illegal and unjustified as alleged?
... OPP.
2.
Whether the petition is not maintainable in the present form?
....OPR.
3. Whether the petition is bad for non-joinder of the necessary parties as alleged. If so, its
effect?
…OPR.
4. Whether the petition is bad on account of delay and laches on the part of the petitioner
as alleged. If so, its effect?
…OPR.
5. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : No
Issue No.3 : No
Issue No.4 : No
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. 01.6.1998 is not in dispute. It is the admitted case of petitioner that he had
worked since June, 1998 but he had been deliberately given fictional breaks by respondent so that
he did not complete 240 days to get benefits of Section 25-B of the Act. The plea of respondent, on
the other hand remains that petitioner was still working but had been working intermittently as he
of his own use to not come on his duty besides he willfully absented several times from it. To
appreciate the genuineness of the plea so raised by respondent, suffice would be to state here that
bald assertion of the respondent that he willfully absented from his duties is devoid of merit as
there is nothing in evidence to show that any letter or intimation was sent to petitioner for his
unauthorized absence from his duties. Rather, it is projected to be case as if petitioner came of his
own and worked left the work of his own sweet will. The plea of petitioner, on the other hand
remains that fictional breaks were given to him and that several persons junior to him namely Smt.
Geet Devi, Dalip Singh, Goutam Singh and Anil Kumar have been regularized by respondent and
these persons were actually not given fictional breaks at any point of time.
10. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 24 days, 129 days in the year 2000, 161 days in the year 2001, 152 days
in the year 2002, 146 days in the year 2003, 158 days in the year 2004, 144 days in the year 2005,
148 days in the year 2006, 216 days in the year 2007, 364 days in the year 2008, 363 days in the
year 2009, 361 days in the year 2010, 363 days in the year 2011 and 87 days in the year 2012. It
can be noticed that in the several years petitioner has worked for less than 240 days, whereas for
other remaining years he had worked for more than 240 days. It may be pertinent to state here that
vide letter dated 14.9.2007 Ex. PW1/B direction has been given by government to provide muster
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roll to all labourers who have been engaged for 15/20 days or 30 days be provided muster roll for
full month in certain situation but his instruction appears to be have been completely ignored as
claimant petitioner was engaged in 1999 much prior to year 2006 and had not completed 10 years
who was to be issued muster roll for full month in relaxation of policy as special case. Thus, break
in service being within a period of nine years from his termination was definitely a fictional break
as in remaining years he had worked for more than 240 days. The act of the respondent in giving
fictional break is manifestly arbitrary without any basis. Seniority list of regular labourers HPPWD
(B&R) Division has also been relied upon by respondent which is Ex. RW1/D on record in which
all the persons named above are shown to have joined in the years 2000, 2002, 2003 and 2004
except at serial no. 7 who had joined earlier to petitioner as workman at serial no.8 joined in 8/1999
whereas petitioner had joined in June, 1999. Since respondent had not disputed to have engaged
petitioner in January, 1999, he ought to have been regularized having continuously worked for
about 9 years with requisite number of days required for regularization and there being no fictional
break as stated above, which would show that other persons who had joined along-with him have
been regularized but the petitioner has been deprived of his legitimate right for regularization till
now. Although respondent department ipso facto does not dislodge petitioner from claiming his
seniority and continuity in service from his initial engagement and that fictional breaks in no
manner would affect or eclipse him legitimate of regularization in service.
11. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1998 to
2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided more than 240 days of work after
September, 2007 which means the dispute is only for the years 1998 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers who have been shown in the said seniority list were employed after the
engagement of the petitioner. He has admitted that working of 240 days is to be established by
petitioner to claim benefit of deemed service under Section 25-B of the Act. He has admitted that
petitioner has been engaged in the year 1999 who had not been issued any appointment letter. He
has denied that petitioner had been deliberately given breaks in the years from 1999 to 2007 but he
could not plead as no corresponding record has been produced by the respondent to establish that
on absence of petitioner from his duty any notice was issued for unauthorized absence and the
version of RW1 that he came and go of his own from duty cannot be accepted which manifestly
appear to be afterthought. Moreover, RW1 has admitted that as per record no notice was given to
petitioner for his absence from duty at any point of time. As such, the plea of fictional break given
to the petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence
on record but from testimony on oath of RW1 as well. Although, petitioner being in employment at
the time of passing of having fictional breaks as stated above is duly established yet he cannot be
deprived of his legitimate right to seek seniority as well as continuity in service form his date of
joining along-with other persons working with him. Thus, petitioner could not have been
discriminated arbitrarily. In view of aforesaid discussion, it is held that time to time termination of
the services of the petitioner and giving fictional breaks in service by the respondent during 1998 to
2007 was certainly illegal and unjustified in contravention of provisions of Section 25-F, 25-G &
25-H of the Act but as the petitioner is still in employment with the respondent, he is to be given
benefit of seniority and continuity in service except back wages in the peculiar circumstances of
the case. Issue in question is decided in part in favour of the petitioner and against the respondent.
ISSUE NO.2
12. On non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has not pressed this plea. Otherwise
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also, from pleadings and evidence on record, no inference of claim petition being not maintainable
could be raised. As such, issue in hand is answered in negative against the respondent and in favour
of petitioner.
ISSUE NO. 3
13. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that he was working with respondent although he
earlier worked with Executive Engineer HPPWD National Highways. Thus creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO. 4
14. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
15. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
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RELIEF
16. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement, the
breaks given by the respondent being fictional in nature shall have no effect on the seniority and
continuity of service of the petitioner and his seniority shall be reckoned from his initial date of
engagement. Accordingly, claim of petition is hereby allowed and reference is accordingly
answered in his favour. The petitioner shall thus be deemed to be in continuous service of
respondent with all consequential benefits except back wages. He shall, however, be considered
for regularization by respondent at the time when his juniors have been regularized as per policy
governing daily wagers as framed by State Govt. and operative from time to time. The parties,
however, shall bear their own costs.
17. The reference is answered in the aforesaid terms.
18. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
19. File after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 238/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Bishamber Singh s/o Shri Mangat Ram, r/o Village Mehda, P.O. Rail, Tehsil Dehra,
Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
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1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Bishamber Singh S/O Sh. Mangat Ram R/O
Village Mehda, P.O. Rail, Tehsil Dehra, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 1995 by
forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner alongwith other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
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been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7567/2013 which was decided on 30.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
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asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
letter dated 12.5.2009 from Divisional Forest Officer, Palampur to petitioner, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C letter
dated 18.2.2006 from Assistant Director, IGCP Palampur to petitioner regarding closure of project,
Ex. RW1/D letter dated 17.4.2006 regarding representation of daily wagers of IGCP Palampur and
closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Bishamber Singh s/o Sh. Mangat Ram
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
OPP
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
…OPP.
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3. Whether the present claim petition/reference is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
…OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
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worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Bishamber Singh figures at serial no.45 who is shown to have been appointed on
01.7.1994 and continued to work till 2006 when he was disengaged on account of closure of
project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for
more than 240 days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. July, 1994 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
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respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
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office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which the
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
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‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy. D. A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
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RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 233/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Pritam Singh s/o Shri Mahant Ram, r/o Village Rakkar, P.O. Kural, Tehsil Palampur,
Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
Whether retrenchment of the services of Sh. Pritam Chand S/O Sh. Mahant Ram R/O
Village Rakkar, P.O. Kural, Tehsil Palampur, Distt. Kangra, by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following the provisions of
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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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.01.1994
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
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Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
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Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
mandays chart of petitioner, Ex. PW1/T information under RTI Act, Ex. `and Ex. P-1 information
regarding filling up of vacant posts of various categories with the government departments and
closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C copy
of letter dated 20.2.2006 regarding closure of IGCP Palampur, Ex. RW1/D letter dated 17.4.2006
regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Pritam Singh s/o Sh. Mahant Ram w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
...OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
...OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
....OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
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5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
...OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
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13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco- Development Society to the respondent. Had the petitioner been
appointed only in IGCP Palampur, respondent being custodian of entire record of project after
closure ought to have produced such record as the same would have established that the petitioner
was appointed only for IGCP Palampur as claimed. Certainly, if any written document or record
had been in possession of the respondent as admitted by RW1 it must have been produced while
leading evidence and thus only conclusion that may be drawn is that petitioner was appointed with
forest department and was deputed to work with IGCP Palampur. The fact that petitioner was
appointed who remained on muster roll of forest department can be safely inferred from statement
of petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Pritam Singh figures at serial no.33 who is shown to have been appointed on February,
1994 and continued to work till 2006 when he was disengaged on account of closure of project. A
bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than
240 days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. January, 1994
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
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as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco-Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
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Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in the above
stated judgment the Hon’ble Apex Court has referred to its former judgment titled as Deepali
Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC
324. It was observed in para no. 22 of the judgment of (2013) that “if the employer wants to deny
back wages to the employee or contested his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during intervening period the employee was gainfully
employed. It was held that benefit of back wages to an employee who had suffered due to an illegal
act of the employer would amount to indirectly punishing the concerned employee and rewarding
the employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
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Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood, it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
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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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K. K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 228/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Kuldeep Singh s/o Shri Rumal Singh, r/o Village Dhabi, P.O. Duhak, Tehsil Palampur,
Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Kuldeep Singh S/O Sh. Rumal Singh R/O
Village-Dhabi, P.O. Duhak, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.1.1996
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by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
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upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
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6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily waged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/S information under RTI Act, Ex. PW1/T detailed mark sheet of petitioner and Ex. P-1
information regarding filling up of vacant posts of various categories with the government
departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C letter
dated 211.2.2006 regarding closure of IGCP Palampur, Ex. RW1/D letter dated 17.4.2006
regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Kuldeep Singh s/o Sh. Rumal Singh w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. . .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
... OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
...OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
....OPR.
6. Relief.
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10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
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any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Kuldeep Singh figures at serial no.61 who is shown to have been appointed on 01.1.1996
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1996 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. January, 1996
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
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Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
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forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
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between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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.
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24. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 239/2013
Date of Institution : 09.12.2013
Date of decision : 29.04.2015
Shri Tara Chand s/o Shri Thenu Ram, r/o Village & P.O. Rail, Tehsil Dehra, Distt. Kangra,
H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Tara Chand S/O Sh. Thenu Ram R/O Village
& P.O. Rail, Tehsil Dehra, Distt. Kangra, H.P. by The Divisional Forest Officer, Palampur,
Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. December,
1995 by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
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and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7567/2013 which was decided on 30.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
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adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act and the same was liable
to be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
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Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
letter dated 12.5.2009 from Divisional Forest Officer, Palampur to petitioner, Ex. PW1/T
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C letter
dated 18.2.2006 from Assistant Director, IGCP Palampur to petitioner regarding closure of project,
Ex. RW1/D letter dated 17.4.2006 regarding representation of daily wagers of IGCP Palampur and
closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Tara Chand s/o Sh. Thenu Ram w.e.f. 31-
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
....OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
....OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
...OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
....OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No. 2 : Yes
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Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
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petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Tara Chand figures at serial no.67 who is shown to have been appointed on 01.01.1997
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1997 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. January, 1997
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
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petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
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17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
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ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 219/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Sanjay Kumar s/o Shri Dharam Chand, r/o Village & P.O. Dhanag, Tehsil Baijnath,
Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1.
The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Sanjay Kumar S/O Sh. Dharam Chand R/O
Village & P.O. Dhanag, Tehsil Baijnath, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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.
In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 02.4.1995
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
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of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o
Sh.Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any
appointment letter and without settling terms and conditions in writing however the said workman
had worked upto 31.12.2001 without any break who had completed 240 days in each calendar year
but his services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
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as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily waged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
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PW1/S information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of
various categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of H.P. Echo- Development Society, Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8.
I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Sanjay Kumar s/o Sh.Dharam Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary partyas alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Sanjay Kumar figures at serial no.52 who is shown to have been appointed on 02.4.1995
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
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glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1995 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. April, 1995 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
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against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
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the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically
alleged in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus,
allegation of having not been gainfully employed as claimed by the petitioner was repudiated by
the respondent in its reply. In the crossexamination, PW1 has specifically admitted on oath before
this court that he was employed as agriculturist. This would also establish that after his
retrenchment, petitioner switched over to agricultural activities and thus remained gainfully
employed. Ld. Dy. District Attorney has relied upon the judgment of Hon’ble Apex Court titled as
titled as North East Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10
SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas
Kabir had held that ‘term gainfully employment would also include self employment wherefrom
income is generated. It was income either from employment in an establishment or from self
employment merely differentiates the sources from which income is generated, the end use being
the same’. Applying the ratio of judgment of 2007 (supra) to this case since the petitioner was
earning from his agricultural pursuits, the same were sufficient to maintain him and his family. It is
thus held that petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in
Deepali Gundu Surwase’s case has held that the Labour Court was not justified in holding that
merely because the respondent was receiving agriculture income, he cannot be treated to be
engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his
livelihood it cannot be stated that petitioner was not gainfully employed and thus would not be
entitled full back wages. In view of the forgoing discussion, it is held that the relationship of
workman and employer existed between petitioner and respondent and that petitioner was illegally
retrenched without compliance of Section 25-F of the Act although remained gainfully employed
after his retrenchment but was liable to be reengaged with seniority and in continuity in service.
Issue no.1 is thus answered holding that retrenchment of services of petitioner by respondent w.e.f.
31st March, 2006 was illegal and unjustified and the petitioner is entitled to be reengaged along
with seniority, past service benefits except back wages. Issues no. 1 and 2 are answered
accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
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considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 236/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Rakesh Chand s/o Shri Parkash Chand, r/o Village & P.O. Malkehar, Tehsil Palampur,
Distt. Kangra, H.P.
. .Petitioner.
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Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Rakesh Chand S/O Sh. Parkash Chand R/O
Village & Post office-Malkehar, Tehsil Palampur, Distt. Kangra, by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 10.3.1998
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
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existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
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4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 02.1.2014
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of H.P. Eco-Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
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1. Whether retrenchment of the services of Sh. Rakesh Chand s/o Sh. Parkash Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
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of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Rakesh Chand figures at serial no.81 who is shown to have been appointed on 10.8.1998
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1998 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex.
PW1/A stipulating therein that he had worked on daily wage basis on muster roll w.e.f. March,
1998 without any appointment order or without settlement of any terms and conditions of his
service and that he had been deputed by respondent vide verbal order to work in IGCP Palampur
which was under control of forest department of State Government. Cross-examination of PW1
revealed that he had worked with forest department however has denied that he has been appointed
to work in project. Since records produced by parties clearly revealed that engagement of petitioner
on muster roll basis by the forest department but his seniority has been reflected in records of IGCP
Palampur and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen.
It can be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1
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Shri B.S. Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross
examination that no notice was given to petitioner and at the same time, no compensation was paid
to the petitioner as per records handed over to his office by the Eco Development Society
concerning IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure
of the project, record in question was handed over to his office in which no copy of appointment
order existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Ld. counsel for petitioner/claimant has contended with
vehemence that present case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had
been regularized in pursuance to award passed in reference no.117/2007. It is alleged in para 11 of
claim petition that said Bishan Dass was appointed as Beldar in forest department was later deputed
to work with IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that
SLP file against the order of Hon’ble High Court of H.P. affirming Award framed in favour of
Bishan Dass was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P.
Award passed in favour of said Bishan Dass had attained finality. It can also be inferred from reply
to para no.11 of the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest
Department, later with IGCP Palampur but on raising industrial dispute was reengaged with
seniority and continuity in service. On this analogy also, petitioner in the case in hand is entitled to
get relief of being reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
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of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically
alleged in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus,
allegation of having not been gainfully employed as claimed by the petitioner was repudiated by
the respondent in its reply. In the crossexamination, PW1 has specifically admitted on oath before
this court that he was employed as agriculturist. This would also establish that after his
retrenchment, petitioner switched over to agricultural activities and thus remained gainfully
employed. Ld. Dy. District Attorney has relied upon the judgment of Hon’ble Apex Court titled as
titled as North East Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10
SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas
Kabir had held that ‘term gainfully employment would also include self employment wherefrom
income is generated. It was income either from employment in an establishment or from self
employment merely differentiates the sources from which income is generated, the end use being
the same’. Applying the ratio of judgment of 2007 (supra) to this case since the petitioner was
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earning from his agricultural pursuits, the same were sufficient to maintain him and his family. It is
thus held that petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in
Deepali Gundu Surwase’s case has held that the Labour Court was not justified in holding that
merely because the respondent was receiving agriculture income, he cannot be treated to be
engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his
livelihood it cannot be stated that petitioner was not gainfully employed and thus would not be
entitled full back wages. In view of the forgoing discussion, it is held that the relationship of
workman and employer existed between petitioner and respondent and that petitioner was illegally
retrenched without compliance of Section 25-F of the Act although remained gainfully employed
after his retrenchment but was liable to be reengaged with seniority and in continuity in service.
Issue no.1 is thus answered holding that retrenchment of services of petitioner by respondent w.e.f.
31st March, 2006 was illegal and unjustified and the petitioner is entitled to be reengaged along
with seniority, past service benefits except back wages. Issues no. 1 and 2 are answered
accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
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be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 221/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Rakesh Chand s/o Shri Raghubir Singh, r/o Village & P.O. Bizapur, Tehsil Jaisinghpur,
Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner :
Sh. N.L. Kaundal, AR
:
Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1.
The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Rakesh Chand S/O Sh. Raghubir Chand R/O
Village & Post Office Bizapur, Tehsil Jaisinghpur, Distt. Kangra, H.P. by The Divisional
Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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?”
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2. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 25.8.1995
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
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services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act, the
same was liable to be set aside. Accordingly, prayer has been made to set aside illegal retrenchment
order dated 31.3.2006 with further direction to respondent to reengage the services of petitioner
with full back wages, seniority, continuity with all consequential service benefits throughout with
costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
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6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 02.1.2014
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of H.P. Eco- Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1.
Whether retrenchment of the services of Sh. Rakesh Chand s/o Sh. Raghubir Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2.
If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP .
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
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Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
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Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Rakesh Chand figures at serial no.54 who is shown to have been appointed on 25.8.1995
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1995 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. August, 1995
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
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well as IGCP Palampur for written consent. Ld. counsel for petitioner/claimant has contended with
vehemence that present case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had
been regularized in pursuance to award passed in reference no.117/2007. It is alleged in para 11 of
claim petition that said Bishan Dass was appointed as Beldar in forest department was later deputed
to work with IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that
SLP file against the order of Hon’ble High Court of H.P. affirming Award framed in favour of
Bishan Dass was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P.
Award passed in favour of said Bishan Dass had attained finality. It can also be inferred from reply
to para no.11 of the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest
Department, later with IGCP Palampur but on raising industrial dispute was reengaged with
seniority and continuity in service. On this analogy also, petitioner in the case in hand is entitled to
get relief of being reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, on the analogy of case
of Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
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termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because
therespondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
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retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 131/2014
Date of Institution : 11.03.2014
Date of decision
: 29.04.2015
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Shri Ranjeet Singh Mehra s/o late Shri Kesarmal Mehra, r/o Village Ganesh Bazar, P.O. &
Tehsil Baijnath, Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
"Whether retrenchment of the services of Sh. Ranjeet Singh Mehra S/O Sh. Kesarmal
Mehra, R/O Village Ganesh Bazar, P.O. & Tehsil Baijnath, Distt. Kangra, H.P.
w.e.f.31.3.2006 without following 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.
In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. November,
1993 by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
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waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3.
Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
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wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6.
To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 12.5.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
information under RTI Act, Ex. PW1/T copy of plus two certificate of petitioner and Ex. P-1
information regarding filling up of vacant posts of various categories with the government
departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
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8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Ranjeet Singh s/o late Sh. Kesarmal
Mehra w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and
unjustified as alleged?
. .OPP.
2.
If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3.
Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6.
Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
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also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Ranjeet Singh figures at serial no.77 who is shown to have been appointed on April, 1998
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1998 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. November, 1993
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
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under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 12.5.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
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16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco-Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, on the analogy of case
of Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in the above
stated judgment the Hon’ble Apex Court has referred to its former judgment titled as Deepali
Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC
324. It was observed in para no. 22 of the judgment of (2013) that “if the employer wants to deny
back wages to the employee or contested his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during intervening period the employee was gainfully
employed. It was held that benefit of back wages to an employee who had suffered due to an illegal
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act of the employer would amount to indirectly punishing the concerned employee and rewarding
the employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood, it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended withvehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
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as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 235/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Jaspal Singh Rana s/o Shri Suba Singh, r/o Village & P.O. Sai, Tehsil Palampur, Distt.
Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.\
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D. A.
AWARD
1.
The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Jaspal Singh Rana S/O Sh. Suba Singh, R/O
Village & Post Office Sai, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 08.8.1998
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
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employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily waged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/S mandays chart of petitioner, Ex. PW1/T information under RTI Act and Ex. P-1
information regarding filling up of vacant posts of various categories with the government
departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of H.P. Echo- Development Society, Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Jaspal Singh s/o Sh. Suba Singh w.e.f. 31
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. .OPP.
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2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 :
Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
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upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in cross examination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Jaspal Singh Rana figures at serial no.80 who is shown to have been appointed on
08.8.1998 and continued to work till 2006 when he was disengaged on account of closure of
project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for
more than 240 days ever since 1998 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. August, 1998
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the cross examination, PW1 has specifically admitted on oath before this court that
he was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
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Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
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by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref . No.
: 222/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Desh Raj s/o Shri Khiyali Ram, r/o Village Tinna, P.O. Balakrupi, Tehsil Palampur,
Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
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“Whether retrenchment of the services of Sh. Desh Raj S/O Sh. Khiyali Ram R/O Village
Tinna, P.O. Balakrupi, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 1994 by
forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner alongwith other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
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Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
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any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5.
The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 12.5.2009 of DFO Palampur to petitioner for
reengagement of daily waged workers of IGCP Palampur, Ex. PW1/S information under RTI Act
and Ex. P-1 information regarding filling up of vacant posts of various categories with the
government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of H.P. Echo- Development Society, Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Desh Raj s/o Sh. Khiyali Ram w.e.f. 31
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
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5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6.
Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1
: Yes
Issue No.2
: Yes
Issue No.3
: Unpressed
Issue No.4
: No
Issue No.5
: Unpressed
Relief
: Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
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13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Desh Raj figures at serial no.22 who is shown to have been appointed on 19.10.1993 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. 1994 without any
appointment order or without settlement of any terms and conditions of his service and that he had
been deputed by respondent vide verbal order to work in IGCP Palampur which was under control
of forest department of State Government. Cross-examination of PW1 revealed that he had worked
with forest department however has denied that he has been appointed to work in project. Since
records produced by parties clearly revealed that engagement of petitioner on muster roll basis by
the forest department but his seniority has been reflected in records of IGCP Palampur and that
retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be noticed
that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S. Yadav the
then Divisional Forest Officer, Palampur has specifically admitted in cross-examination that no
notice was given to petitioner and at the same time, no compensation was paid to the petitioner as
per records handed over to his office by the Eco Development Society concerning IGCP Palampur.
Consequently, RW1 has clarified on oath by admitting that on closure of the project, record in
question was handed over to his office in which no copy of appointment order existed in favour of
the petitioner which establishes that IGCP Palampur had never appointed petitioner or that
petitioner was engaged only to work with IGCP Palampur as contended by respondent. As such,
from the testimony of PW1 coupled with evidence on record as stated and case law referred above
this court is left with no option but to hold that there existed relationship of workman and employer
between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
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as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
20.2.2009 by Divisional Forest Officer, Palampur letter Ex. PW1/Q in which willingness of the
petitioner was sought on or before 10.3.2009 and prior to it letter Ex. PW1/R dated 12.5.2010 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
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Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, even on the analogy
of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its re ply has specifically
alleged in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus,
allegation of having not been gainfully employed as claimed by the petitioner was repudiated by
the respondent in its reply. In the crossexamination, PW1 has specifically admitted on oath before
this court that he was employed as agriculturist. This would also establish that after his
retrenchment, petitioner switched over to agricultural activities and thus remained gainfully
employed. Ld. Dy. District Attorney has relied upon the judgment of Hon’ble Apex Court titled as
titled as North East Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10
SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas
Kabir had held that ‘term gainfully employment would also include self employment wherefrom
income is generated. It was income either from employment in an establishment or from self
employment merely differentiates the sources from which income is generated, the end use being
the same’. Applying the ratio of judgment of 2007 (supra) to this case since the petitioner was
earning from his agricultural pursuits, the same were sufficient to maintain him and his family. It is
thus held that petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in
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Deepali Gundu Surwase’s case has held that the Labour Court was not justified in holding that
merely because the respondent was receiving agriculture income, he cannot be treated to be
engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his
livelihood it cannot be stated that petitioner was not gainfully employed and thus would not be
entitled full back wages. In view of the forgoing discussion, it is held that the relationship of
workman and employer existed between petitioner and respondent and that petitioner was illegally
retrenched without compliance of Section 25-F of the Act although remained gainfully employed
after his retrenchment but was liable to be reengaged with seniority and in continuity in service.
Issue no.1 is thus answered holding that retrenchment of services of petitioner by respondent w.e.f.
31st March, 2006 was illegal and unjustified and the petitioner is entitled to be reengaged along
with seniority, past service benefits except back wages. Issues no. 1 and 2 are answered
accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy. D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved materialfacts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
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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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 128/2014
Date of Institution : 06.3.2014
Date of decision : 29.04.2015
Shri Sandeep Rana s/o late Sh. Goverdhan Singh, r/o Village & P.O. Ghugar, Tehsil
Palampur, Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Sandeep Rana S/O Late Sh. Goverdhan Singh
R/O Village & P.O. Ghugar, Tehsil Palampur, Distt. Kangra, (H.P.) w.e.f. 31.3.2006 by the
Eco Development Society/Indo German Changer Project (I.G.C.P.), Palampur without
following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.12.1993
by forest department but no appointment order was issued and at the same time no terms and
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conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
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adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
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Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R information under RTI Act and Ex. P-1 information
regarding filling up of vacant posts of various categories with the government departments and
closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8.
I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Sandeep Rana s/o late Sh. Goverdhan Singh
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
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Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
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to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Sandeep Singh Rana figures at serial no.53 who is shown to have been appointed on
May, 1995 and continued to work till 2006 when he was disengaged on account of closure of
project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for
more than 240 days ever since 1995 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. December, 1993
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
20.2.2009 by Divisional Forest Officer, Palampur letter Ex. PW1/Q in which willingness of the
petitioner was sought on or before 10.3.2009 and intimation was given to petitioner that his case
has been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
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assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. he was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. whch is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
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17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving his of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically
alleged in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus,
allegation of having not been gainfully employed as claimed by the petitioner was repudiated by
the respondent in its reply. In the crossexamination, PW1 has specifically admitted on oath before
this court that he was employed as agriculturist. This would also establish that after his
retrenchment, petitioner switched over to agricultural activities and thus remained gainfully
employed. Ld. Dy. District Attorney has relied upon the judgment of Hon’ble Apex Court titled as
titled as North East Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10
SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas
Kabir had held that ‘term gainfully employment would also include self employment wherefrom
income is generated. It was income either from employment in an establishment or from self
employment merely differentiates the sources from which income is generated, the end use being
the same’. Applying the ratio of judgment of 2007 (supra) to this case since the petitioner was
earning from his agricultural pursuits, the same were sufficient to maintain his and his family. It is
thus held that petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in
Deepali Gundu Surwase’s case has held that the Labour Court was not justified in holding that
merely because the respondent was receiving agriculture income, he cannot be treated to be
engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his
livelihood it cannot be stated that petitioner was not gainfully employed and thus would not be
entitled full back wages. In view of the forgoing discussion, it is held that the relationship of
workman and employer existed between petitioner and respondent and that petitioner was illegally
retrenched without compliance of Section 25-F of the Act although remained gainfully employed
after his retrenchment but was liable to be reengaged with seniority and in continuity in service.
Issue no.1 is thus answered holding that retrenchment of services of petitioner by respondent w.e.f.
31st March, 2006 was illegal and unjustified and the petitioner is entitled to be reengaged along
with seniority, past service benefits except back wages. Issues no. 1 and 2 are answered
accordingly.
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ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent. ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K.K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 224/2013
Date of Institution : 09.12.2013
Date of decision
: 29.04.2015
Shri Kalyan Chand s/o Shri Hari Ram, r/o Village Lanjehar, P.O. Rajhun, Tehsil Palampur,
Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Kalyan Chand S/O Sh. Hari Ram R/O Village
Lanjehar, P.O. Rajhun, Tehsil Palampur, Distt. Kangra, H.P. by The Divisional Forest
Officer, Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 22.7.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice payin lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
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of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
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as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4.
Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5.
The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
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mandays chart of petitioner, Ex. PW1/T letter dated 12.5.2009 from DFO Palampur to petitioner,
Ex. PW1/U information under RTI Act and Ex. P-1 information regarding filling up of vacant posts
of various categories with the government departments and closed evidence.
7.
On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9.
From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1.
Whether retrenchment of the services of Sh. Kalyan Chand s/o Sh. Hari Ram w.e.f. 31-
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
. .OPP.
2.
If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
...OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
...OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
...OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected which
can be disposed of simultaneously without repetition of evidence.
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12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee with IGCP Palampur could
not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Kalyan Singh figures at serial no.12 who is shown to have been appointed on 22.7.1993
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
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glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. July, 1993 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21st October, 2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness
of the petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated
20.2.2009 of Divisional Forest Officer, Palampur in which intimation was given to petitioner
thathis case has been sent to DGP, H.P. and that willingness/option for particular postof police
department has been sent. Thus, it seems that in the year 2009 and 2010 petitioner through
correspondence was assured about absorption in other government departments but till the raising
the industrial dispute and consequently reference from the Labour Commissioner, petitioner was
not appointed or absorbed in other govt. departments. Thus, the very fact that government through
its official agency was in touch with the petitioner for his case of absorption and engagement in
government job after retrenchment supports the claim of the petitioner on the point of delay in
raising industrial dispute on his termination. Ld. counsel for petitioner/claimant has contended with
vehemence that present case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had
been regularized in pursuance to award passed in reference no.117/2007. It is alleged in para 11 of
claim petition that said Bishan Dass was appointed as Beldar in forest department was later deputed
to work with IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that
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SLP file against the order of Hon’ble High Court of H.P. affirming Award framed in favour of
Bishan Dass was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P.
Award passed in favour of said Bishan Dass had attained finality. It can also be inferred from reply
to para no.11 of the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest
Department, later with IGCP Palampur but on raising industrial dispute was reengaged with
seniority and continuity in service. On this analogy also, petitioner in the case in hand is entitled to
get relief of being reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project. Not only this, on the analogy of case
of Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of
reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
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the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in the above
stated judgment the Hon’ble Apex Court has referred to its former judgment titled as Deepali
Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC
324. It was observed in para no. 22 of the judgment of (2013) that “if the employer wants to deny
back wages to the employee or contested his entitlement to get consequential benefits, then it is for
him/her to specifically plead and prove that during intervening period the employee was gainfully
employed. It was held that benefit of back wages to an employee who had suffered due to an illegal
act of the employer would amount to indirectly punishing the concerned employee and rewarding
the employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood, it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
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longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K.K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 125/2014
Date of Institution
: 06.3.2014
Date of decision
: 29.04.2015
Shri Parkash Chand s/o Shri Chatru Ram, r/o Village Bandla, P.O. Nachhir, Tehsil
Palampur, Distt. Kangra, H.P.
. .Petitioner.
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Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Parkash Chand S/O Sh. Chatru Ram R/O
Village Bandla, P.O. Nachhir, Tehsil Palampur, Distt. Kangra, (H.P.) w.e.f. 31.3.2006 by
the Eco Development Society/Indo German Changer Project (I.G.C.P.), Palampur without
following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 02.7.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
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existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
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availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R information under RTI Act, Ex. PW1/S mandays chart of
petitioner, and Ex. P-1 information regarding filling up of vacant posts of various categories with
the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
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Whether retrenchment of the services of Sh. Parkash Chand s/o Sh. Chatru Ram w.e.f. 31
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
. .OPP.
If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for? OPP Whether the present
claim petition/reference is not maintainable in the present form?
. .OPR.
Whether the claim petition is bad on account of delay and laches as alleged. If so, its effect?
. .OPR.
Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
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continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Parkash Chand figures at serial no.7 who is shown to have been appointed on 02.7.1993
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. July, 1993 without
any appointment order or without settlement of any terms and conditions of his service and that he
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that he had
worked with forest department however has denied that he has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but his seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
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project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
20.2.2009 by Divisional Forest Officer, Palampur letter Ex. PW1/Q in which willingness of the
petitioner was sought on or before 10.3.2009 and intimation was given to petitioner that his case
has been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. he was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
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governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. which is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving his of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
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having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain his and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
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assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By ordeer,
K.K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 119/2014
Date of Institution : 26.2.2014
Date of decision
: 29.04.2015
Smt. Meenakshi Sharma w/o Shri Arvind Kumar, r/o Village Rodi, P.O. Thakurdwara,
Distt. Kangra, H.P.
. . Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Smt. Meenakshi Sharma W/O Sh. Arvind Kumar,
R/O Village- Rodi, P.O. Thakurdwara, Distt. Kangra, (H.P.) w.e.f. 31.3.2006 by the Eco
Development Society/Indo German Changer Project (I.G.C.P.), Palampur without following
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.
In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that she had been engaged on daily waged basis on muster roll w.e.f. 02.7.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides she had also worked with Bishan Dass
and Sushil Kumar and that she continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to her utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about her retrenchment, she was informed that Government
had decided to close the IGCP Palampur and her services were no more required. It is claimed that
at the time of her unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
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daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed her willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but her
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua her illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and her appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
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beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at her sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated her stand as maintained
in the claim petition.
6.
To prove her case, petitioner had examined herself as PW1tendered/proved her
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area Ex. PW1/S
mandays chart of petitioner and others, Ex. PW1/T letter dated 29.3.2010 from Engineer-in-Chief
to The Pr. Chief Conservator of Forests for reengagement of daily aged workers of IGCP Palampur
and IWDP (Hills), Ex. PW1/U information under RTI Act and Ex. P-1 information regarding filling
up of vacant posts of various categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved her affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Meenakshi Sharma w/o Sh. Arvind Kumar
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
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4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
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13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that her employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Meenakshi Sharma figures at serial no.23 who is shown to have been appointed on
01.11.1993 and continued to work till 2006 when she was disengaged on account of closure of
project. A bare glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for
more than 240 days ever since 1993 till 2006 immediately prior to her retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that she had worked on daily wage basis on muster roll w.e.f. July, 1993 without
any appointment order or without settlement of any terms and conditions of her service and that she
had been deputed by respondent vide verbal order to work in IGCP Palampur which was under
control of forest department of State Government. Cross-examination of PW1 revealed that she had
worked with forest department however has denied that she has been appointed to work in project.
Since records produced by parties clearly revealed that engagement of petitioner on muster roll
basis by the forest department but her seniority has been reflected in records of IGCP Palampur and
that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to her office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to her office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after her retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
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as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that her case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for her case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on her termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. she was authorized to do so by Chairman
who was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, IndoGerman Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
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Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project rather it is the State Govt. whch is liable to
redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is employee
of State Forest Department was essentially involved in project work in question and also saddled
with the responsibility of taking charge of entire project as stated in foregoing paras, could be in
law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this, even
on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to be
given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, her
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested her entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving her of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that
she was employed as agriculturist. This would also establish that after her retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
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differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from her
agricultural pursuits, the same were sufficient to maintain her and her family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, she cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for her livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after her retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
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be entitled to seniority and continuity in service from the date of her illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 124/2014
Date of Institution
: 06.3.2014
Date of decision
: 29.04.2015
Smt. Meenakshi Sood d/o Shri Trilok Chand Sood, r/o Village Bandla, P.O. Nachhir, Tehsil
Palampur, Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Smt. Meenakshi Sood D/O Sh. Trilok Chand
Sood, R/O Village Bandla, P.O. Nachhir, Tehsil Palampur, Distt. Kangra, H.P. w.e.f.
31.3.2006 by the Eco Development Society/Indo German Changer Project (I.G.C.P.),
Palampur without following 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?”
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2. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that she had been engaged on daily waged basis on muster roll w.e.f. 03.3.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides she had also worked with Bishan Dass
and Sushil Kumar and that she continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to her utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about her retrenchment, she was informed that Government
had decided to close the IGCP Palampur and her services were no more required. It is claimed that
at the time of her unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed her willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but her
services had been unlawfully terminated by respondent department without complying the
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mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua her illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and her appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at her sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5.
The petitioner filed rejoinder to reply by respondent, reiterated her stand as maintained
in the claim petition.
6. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
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IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to
IGCPPalampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP
and IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex. PW1/S
mandays chart of petitioner and others, Ex. PW1/T letter dated 29.3.2010 from Engineer-in-Chief
to The Pr. Chief Conservator of Forests for reengagement of daily aged workers of IGCP Palampur
and IWDP (Hills) Kandi Area, Ex. PW1/U information under RTI Act, Ex. PW1/V letter dated
4.12.1992 and Ex. P-1 information regarding filling up of vacant posts of various categories with
the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved her affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8.
I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Smt. Meenakshi Sood d/o Sh. Trilok Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
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Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that her employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
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petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Meenakshi Sood figures at serial no.2 who is shown to have been appointed on 03.3.1993
and continued to work till 2006 when she was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to her retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that she had worked on daily wage basis on muster roll w.e.f. March, 1993
without any appointment order or without settlement of any terms and conditions of her service and
that she had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
she had worked with forest department however has denied that she has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but her seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to her office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to her office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after her retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
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21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that her case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for her case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on her termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. she was authorized to do so by Chairman
who was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. whch is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
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employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, her
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested her entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving her of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that
she was employed as agriculturist. This would also establish that after her retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from her
agricultural pursuits, the same were sufficient to maintain her and her family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, she cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for her livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after her retrenchment but was
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liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of her illegal termination except
back wages. The parties, however, shall 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.
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Announced in the open Court today this 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 126/2014
Date of Institution
: 06.3.2014
Date of decision
: 29.04.2015
Shri Yash Pal s/o Shri Jaishi Ram, r/o Village Lahla, P.O. Hangloh, Tehsil Palampur, Distt.
Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
.Respondent.
Reference under section 10 (1) of the Industrial Disputes Act,1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Yash Pal S/O Sh. Jaishi Ram, R/O Village
Lahla, P.O. Hangloh, Tehsil Palampur, Distt. Kangra, (H.P.) w.e.f. 31.3.2006 by the Eco
Development Society/Indo German Changer Project (I.G.C.P.), Palampur without following
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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.8.1993
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
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continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
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worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
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Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area Ex. PW1/S
mandays chart of petitioner, Ex. PW1/T information under RTI Act and Ex. P-1 information
regarding filling up of vacant posts of various categories with the government departments and
closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8.
I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Yash Pal s/o Sh. Jaishi Ram w.e.f. 31-03
2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6.
Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
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REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
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petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Yash Pal figures at serial no.14 who is shown to have been appointed on 01.8.1993 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex.
PW1/A stipulating therein that he had worked on daily wage basis on muster roll w.e.f. August,
1993 without any appointment order or without settlement of any terms and conditions of his
service and that he had been deputed by respondent vide verbal order to work in IGCP Palampur
which was under control of forest department of State Government. Cross-examination of PW1
revealed that he had worked with forest department however has denied that he has been appointed
to work in project. Since records produced by parties clearly revealed that engagement of petitioner
on muster roll basis by the forest department but his seniority has been reflected in records of IGCP
Palampur and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen.
It can be noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1
Shri B.S. Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross
examination that no notice was given to petitioner and at the same time, no compensation was paid
to the petitioner as per records handed over to his office by the Eco Development Society
concerning IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure
of the project, record in question was handed over to his office in which no copy of appointment
order existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
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on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. he was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. whch is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
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of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving his of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain his and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO.3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent. ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
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retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K.K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 127/2014
Date of Institution : 06.3.2014
Date of decision
: 29.04.2015
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Shri Suneel Kumar s/o Sh. Sant Ram, r/o Village Kharoth, P.O. Ballah, Tehsil Palampur,
Distt. Kangra, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1.
The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Suneel Kumar, Village Kharoth, P.O. Ballah,
Tehsil Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 by the Eco Development
Society/Indo German Changer Project (I.G.C.P.), Palampur without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 1993 by
forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
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Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
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4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area Ex. PW1/S
mandays chart of petitioner, Ex. PW1/T information under RTI Act and Ex. P-1 information
regarding filling up of vacant posts of various categories with the government departments and
closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
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9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Suneel Kumar w.e.f. 31-03-2006 by the
Divisional Forest Officer, Palampur is illegal and unjustified as alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 :
No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
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appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Suneel Kumar figures at serial no.1 who is shown to have been appointed on 08.1.1993
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1993 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. 1993 without any
appointment order or without settlement of any terms and conditions of his service and that he had
been deputed by respondent vide verbal order to work in IGCP Palampur which was under control
of forest department of State Government. Cross-examination of PW1 revealed that he had worked
with forest department however has denied that he has been appointed to work in project. Since
records produced by parties clearly revealed that engagement of petitioner on muster roll basis by
the forest department but his seniority has been reflected in records of IGCP Palampur and that
retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be noticed
that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S. Yadav the
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then Divisional Forest Officer, Palampur has specifically admitted in cross-examination that no
notice was given to petitioner and at the same time, no compensation was paid to the petitioner as
per records handed over to his office by the Eco Development Society concerning IGCP Palampur.
Consequently, RW1 has clarified on oath by admitting that on closure of the project, record in
question was handed over to his office in which no copy of appointment order existed in favour of
the petitioner which establishes that IGCP Palampur had never appointed petitioner or that
petitioner was engaged only to work with IGCP Palampur as contended by respondent. As such,
from the testimony of PW1 coupled with evidence on record as stated and case law referred above
this court is left with no option but to hold that there existed relationship of workman and employer
between the parties. Moreover, no official of Eco- Development Society or IGCP has been
examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
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Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. he was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. which is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
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employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving his of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain his and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum- Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
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as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 130/2014
Date of Institution : 06.3.2014
Date of decision
: 29.04.2015
Shri Achhar Singh s/o Shri Dhani Ram, r/o Village Bhadyara, P.O. Chauntra, Tehsil
Joginder Nagar, Distt. Mandi, H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Achhar Singh S/O Sh. Dhani Ram, R/O
village Bhadyara, P.O. Chauntra, Tehsil Joginder Nagar, Distt. Mandi, (H.P.) w.e.f.
31.3.2006 by the Eco Development Society/Indo German Changer Project (I.G.C.P.),
Palampur without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 01.2.1994
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement of issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the government when State Government had taken decision to
reengage the retrenched daily waged workers of IGCP Palampur for which Additional Chief
Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99 daily
waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched were
contemplated to be reengaged by state government in different departments where vacant posts
existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
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reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which was even not admitted. Thereafter Bishan Dass as
worker of IGCP had been reengaged by respondent department who has been working as class-IV
on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen whose
services had been retrenched by respondent along-with the petitioner had sought information under
RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil Kumar
had been reengaged by respondent on 30.8.2013 who is presently working with the respondent
department. The grievance of the petitioner remains that from 2006 to 2010, the respondent as well
as higher authorities of State Government had made false assurances that retrenched workers of
IGCP Palampur including petitioner would be absorbed by giving services in other government
departments and due to this reason petitioner had not raised any industrial dispute earlier and thus
respondent cannot take plea that there was delay in raising industrial dispute. Claiming that the act
of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was highly unjustified,
arbitrary, unconstitutional and against the mandatory provisions of the Act, the same was liable to
be set aside. Accordingly, prayer has been made to set aside illegal retrenchment order dated
31.3.2006 with further direction to respondent to reengage the services of petitioner with full back
wages, seniority, continuity with all consequential service benefits throughout with costs of
litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
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asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 20.2.2009 claiming
willingness of the petitioner, Ex. PW1/R letter dated 21.1.2010 of DFO Palampur to petitioner for
reengagement of daily aged workers of IGCP Palampur and IWDP (Hills) Kandi Area Ex. PW1/S
mandays chart of petitioner, Ex. PW1/T information under RTI Act and Ex. P-1 information
regarding filling up of vacant posts of various categories with the government departments and
closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Eco Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
8.
I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Achhar Singh s/o Sh. Dhani Ram w.e.f.
31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
. .OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
. .OPP.
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3. Whether the present claim petition/reference is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
. .OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner was employed in IGCP Palampur a foreign aided project besides the above stated project
was manned under the supervision and control of senior government officers headed by Secretary
(Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is also admitted case of
respondent that IGCP Palampur had been closed in 2006 and on the closure of project, the Eco-
Development Society registered with the Registrar Cooperative Societies in the year 1992 had
handed over entire records of IGCP Palampur to respondent and that said Eco Development Society
was still in existence. It also remains the case of respondent that it cannot reengage petitioner
without prior approval of government of H.P. It is equally admitted case of parties that no
appointment letter was ever issued to petitioner and that no terms and conditions of services of
petitioner were settled. It would, therefore, be relevant to consider that in absence of any written
appointment letter and settlement of any terms and conditions, inference could be raised that
petitioner was appointed with IGCP Palampur only for a limited period or to work till the
continuation of project as has been contended by respondent in its reply in which it had relied upon
the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as State of
Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of Himachal
Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if worker
was appointed specifically to work in project, then on closure of project due to non-availability of
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funds the temporary employees engaged in the project were not entitled to regularization. In so far
as the plea of petitioner being temporary employee appointed only for project as contended by
respondent is concerned, this has to be determined with reference to evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Achhar Singh figures at serial no.31 who is shown to have been appointed on 01.2.1994
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. February, 1994
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
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workman and employer between the parties. Moreover, no official of Eco- Development Society or
IGCP has been examined by respondent to negate the claim of petitioner.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Not only this, petitioner had been issued letter dated
21.1.2010 by Divisional Forest Officer, Palampur letter Ex. PW1/R in which willingness of the
petitioner was sought on or before 11.2.2010 and prior to it letter Ex. PW1/Q dated 20.2.2009 of
Divisional Forest Officer, Palampur in which intimation was given to petitioner that his case has
been sent to DGP, H.P. and that willingness/option for particular post of police department has
been sent. Thus, it seems that in the year 2009 and 2010 petitioner through correspondence was
assured about absorption in other government departments but till the raising the industrial dispute
and consequently reference from the Labour Commissioner, petitioner was not appointed or
absorbed in other govt. departments. Thus, the very fact that government through its official agency
was in touch with the petitioner for his case of absorption and engagement in government job after
retrenchment supports the claim of the petitioner on the point of delay in raising industrial dispute
on his termination. Ld. counsel for petitioner/claimant has contended with vehemence that present
case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had been regularized in
pursuance to award passed in reference no.117/2007. It is alleged in para 11 of claim petition that
said Bishan Dass was appointed as Beldar in forest department was later deputed to work with
IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that SLP file
against the order of Hon’ble High Court of H.P. affirming Award framed in favour of Bishan Dass
was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P. Award passed in
favour of said Bishan Dass had attained finality. It can also be inferred from reply to para no.11 of
the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest Department, later
with IGCP Palampur but on raising industrial dispute was reengaged with seniority and continuity
in service. On this analogy also, petitioner in the case in hand is entitled to get relief of being
reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. he was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
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and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective of fact that it was foreign aided project rather it is the State Govt. whch is
liable to redress grievance of the petitioner. However, Divisional Forest Officer Palampur who is
employee of State Forest Department was essentially involved in project work in question and also
saddled with the responsibility of taking charge of entire project as stated in foregoing paras, could
be in law fastened with the liability of satisfying award on behalf of IGCP Palampur. Not only this,
even on the analogy of case of Bishan Dass, as discussed in foregoing para, petitioner is entitled to
be given relief of reengagement with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed. It
was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concernedemployee and rewarding the
employer by relieving his of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
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Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits, the same were sufficient to maintain his and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO.4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
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by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 29th day of April, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 96/ 2014
Shri Shashi Pal Sharma s/o Shri Kesar Chand, r/o Village Magrauni, P.O. Dhaneta, Tehsil
Nadaun, District Hamirpur, H.P.
. .Petitioner.
Versus
The Employer/Executive Director, M/S MBD Printographics (P) Ltd. Paper Manufacturing
Unit, Ram Nagar, Industrial Area, Gagret, Tehsil Amb, District Una, H.P. (Factory Office), M/S
MBD Printographics (P) Ltd. Paper Manufacturing Unit, Gulab Bhawan, 6, Bahadur Shah Zafar
Marg, New Delhi-110112 (Corporate Office), M/S MBD Printographics (P) Ltd. Paper
Manufacturing Unit, New Railway Road, Jalandhar-144001 (Regd. Office).
. .Respondent.
27-04-2015 Present: None for the petitioner.
Sh. Santosh Kumar, Adv. vice of Sh. R.K. Bhardwaj, Adv. csl. for the respondent.
Case called several times but none has appeared on behalf of the petitioner. It is 12.35 A.M.
Be awaited and put up after lunch hours at 2.40 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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27-04-2015 Present: None for the petitioner.
Sh. Santosh Kumar, Adv. vice of Sh. R.K. Bhardwaj, Adv. csl. for the respondent.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.50 P.M. None appearance of petitioner or his authorised representative today despite
knowledge of hearing of case is indicative of the fact that petitioner is not interested to pursue
present reference and accordingly reference is disposed off for non-prosecution. Reference is
answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 184/ 2013
Smt. Trishla Devi w/o Shri Rajinder Pal, r/o V.P.O. Mubarakpur, Tehsil Amb, District Una,
H.P.
. .Petitioner.
Versus
1. Sh. Suresh Kumar Kaushal, C/O M/S Tigaksha Metallics Pvt. Ltd., Plot No. 16, Ram
Nagar, Industrial Area Gagret, Tehsil Amb, District Una, H.P.(Labour Contractor).
2. The Managing Director/employer, M/S Tigaksha Metallics Pvt. Ltd., Plot No. 16, Ram
Nagar, Industrial Area Gagret, Tehsil Amb, District Una, H.P. (Principal Employer) .
...Respondents.
27-04-2015 Present: None for the petitioner.
Respondent no. 1 in person.
Sh. Rajesh Kosh, Law Officer for the respondent no.2. Case called several times but none
has appeared on behalf of the petitioner. It is 12.10 A.M. Be awaited and put up after lunch hours at
2.30 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P
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27-04-2015 Present: None for the petitioner.
Respondent no.1 in person.
Sh. Rajesh Kosh, Law Officer for the respondent no.2. Case has been called again several
times but none has appeared on behalf of the petitioner. It is 2.43 P.M. None appearance of
petitioner or his authorised representative today despite knowledge of hearing of case is indicative
of the fact that petitioner is not interested to pursue present reference and accordingly reference is
disposed off for non-prosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 287/2014
Smt. Mamta Devi through General Secretary and authorized representative, Forest and
Forest Corporation Workers Union, House No.100/3, Roda Sector-2, Bilaspur, District Bilaspur,
H.P.
. .Petitioner.
Versus
Divisional Manager, Forest Working Division, Hamirpur, District Hamirpur, H.P.
. .Respondent.
22-04-2015 Present: Sh. S.S. Sippy, A.R. for the petitioner.
Sh. Sanjeev Singh Rana, D.D.A. for the respondent.
Sh. Kashmir Chand, Forest Guard of Corporation.
Heard. Statement of Authorised Representative of the petitioner for not pressing of
reference is recorded separately and placed on file.
2. In view of statement made by Authorised Representative for the petitioner, the claim of
the petitioner is disposed of as withdrawn and thus the demand raised by Smt. Mamta Devi
(petitioner) through her authorized representative has been fulfilled by the Divisional Manager,
Forest Working Division, Hamirpur (respondent) as per policy of State Govt.
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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.
7. Be consigned to the Records after needful completion.
8. Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT -CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. 374 / 2014
Sh. Suresh Kumar s/o Shri Man Singh, r/o Village Bag, P.O. Tramat, 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.
04-05-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, Dy. D.A. for the respondent.
Case called several times but none has appeared on behalf of the petitioner despite due
service as claimant/petitioner has sent separate application dated 05-01-2015 for withdrawal of
case. It is 11.40 A.M. Be awaited and put up after lunch hours at 2.30 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
04-05-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, Dy.D.A. for the respondent.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.37 P.M. None appearance of petitioner or his ld. counsel today is indicative of the fact that
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petitioner is not interested to pursue present reference and accordingly reference is disposed off for
non-prosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 223/2013
Date of Institution : 09.12.2013
Date of decision
: 06.05.2015
Shri Prakam Ram s/o Shri Saran Dass, r/o Village Nain, P.O. & Tehsil Baijnath, Distt. Kangra,
H.P.
. .Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
Whether retrenchment of the services of Sh. Prakam Ram S/O Sh. Saran Dass R/O Village
Nain, P.O. & Tehsil Baijnath, Distt. Kangra, H.P. by The Divisional Forest Officer,
Palampur, Distt. Kangra, H.P. w.e.f.31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. October,
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1998 by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently he
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
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upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act, the
same was liable to be set aside. Accordingly, prayer has been made to set aside illegal retrenchment
order dated 31.3.2006 with further direction to respondent to reengage the services of petitioner
with full back wages, seniority, continuity with all consequential service benefits throughout with
costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
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6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 02.01.2009
information under RTI Act and Ex. P-1 information regarding filling up of vacant posts of various
categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C HP
Echo Development Society Palampur, Ex. RW1/D letter dated 17.4.2006 regarding representation
of daily wagers of IGCP Palampur, Ex. RW1/E copy of retrenchment notice dated 24.2.2006 to
petitioner and closed evidence.
8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Prakam Ram s/o Sh. Saran Dass w.e.f. 31-
03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified as
alleged?
...OPP.
2.
If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
...OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
....OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
...OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
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Issue No. 2 : Yes
Issue No. 3 : Unpressed
Issue No. 4 : No
Issue No. 5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
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Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1, it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner figures at serial no.9 who is shown to have been appointed on February, 1999 and
continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B1 to B12 would reveal that petitioner had worked for more
than 240 days ever since 1999 till 2006 as is also evident from Ex. RW1/E.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. January, 1994
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice aforestated was issued in 2006. RW1 Shri B.S. Yadav the then
Divisional Forest Officer, Palampur has specifically admitted in cross-examination that no notice
was given to petitioner contrary to Ex. RW1/E which is for retrenchment as per records handed
over to his office by the Eco Development Society concerning IGCP Palampur. Consequently,
RW1 has clarified on oath by admitting that on closure of the project, record in question was
handed over to his office in which no copy of appointment order existed in favour of the petitioner
which establishes that IGCP Palampur had never appointed petitioner or that petitioner was
engaged only to work with IGCP Palampur as contended by respondent. Significantly, in cross-
examination RW1 the respondent has admitted that except year 2006, petitioner had worked for
240 days. In view of such admission of contesting respondent, this court is left with no option but
to hold that there existed relationship of workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as
well as without payment of compensation as required under the law, the respondent department as
well as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Ld. counsel for petitioner/claimant has contended with
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vehemence that present case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had
been regularized in pursuance to award passed in reference no.117/2007. It is alleged in para 11 of
claim petition that said Bishan Dass was appointed as Beldar in forest department was later deputed
to work with IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that
SLP file against the order of Hon’ble High Court of H.P. affirming Award framed in favour of
Bishan Dass was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P.
Award passed in favour of said Bishan Dass had attained finality. It can also be inferred from reply
to para no.11 of the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest
Department, later with IGCP Palampur but on raising industrial dispute was reengaged with
seniority and continuity in service. On this analogy also, petitioner in the case in hand is entitled to
get relief of being reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo-German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Apex Court has held in unequivocal
terms that a workman is entitled to reinstatement with full back wages when termination order is
void abinitio. It was specifically held by the Hon’ble Apex Court that if the workman had
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completed 240 days in continuous service, preceding 12 calendar months, his termination without
compliance of the provisions of Section 25-F of the Act makes the retrenchment/termination illegal
entitling workman to reinstatement with back wages. It has come in the evidence that petitioner has
been retrenched without notice and compensation and therefore the order of termination would be
void abinitio as it has been done without compliance of Section 25-F of the Act. I have carefully
gone through the judgment of Hon’ble Apex Court in the above stated judgment the Hon’ble Apex
Court has referred to its former judgment titled as Deepali Gundu Surwase vs. Kranti Junior
Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in para no. 22 of
the judgment of (2013) that “if the employer wants to deny back wages to the employee or
contested his entitlement to get consequential benefits, then it is for him/her to specifically plead
and prove that during intervening period the employee was gainfully employed. It was held that
benefit of back wages to an employee who had suffered due to an illegal act of the employer would
amount to indirectly punishing the concerned employee and rewarding the employer by relieving
him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 supra since the petitioner was earning from his agricultural pursuits
the same were sufficient to maintain him and his family. It is thus held that petitioner was gainfully
employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s case has held
that the Labour Court was not justified in holding that merely because the respondent was receiving
agriculture income, he cannot be treated to be engaged in gainful employment. Since the petitioner
had income from agriculture pursuits for his livelihood it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled full back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Section 25-F of the
Act although remained gainfully employed after his retrenchment but was liable to be reengaged
with seniority and in continuity in service. Issue no.1 is thus answered holding that retrenchment of
services of petitioner by respondent w.e.f. 31st March, 2006 was illegal and unjustified and the
petitioner is entitled to be reengaged along-with seniority, past service benefits except back wages.
Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
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after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has held that delay in raising dispute may be considered by
court at the time of granting final relief but in various other judgments even longer delay has been
condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP)
1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that
principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by
Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-cum-Processing
Society Limited and Another, (1999) 6 SCC 82 in which it has been held that the principle of
Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes Act. It was
observed that the relief under Industrial Disputes Act cannot be denied merely on the ground of
delay. It has been contended that delay if any raised by employer is required to be proved as a
matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately on retrenchment and finally raised when
despite repeated assurances to absorb the petitioner in govt. department he was not offered any
appointment or absorbed by the government or the respondent. Thus, the petition filed by petitioner
cannot be stated to be bad on vice of delay and laches. Issue thus is accordingly answered in
negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 6th day of May, 2015.
By order,
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 226/2013
Date of Institution : 09.12.2013
Date of decision
: 06.05.2015
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Shri Kultar Chand s/o Shri Bhawani Chand, r/o Village & P.O. Bijapur, Tehsil Jaisinghpur,
Distt. Kangra, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Palampur, District Kangra, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether retrenchment of the services of Sh. Kultar Chand S/O Sh. Bhawani Chand R/O
Village & Post Office Bijapur, Tehsil Jaisinghpur, Distt. Kangra, H.P. by The Divisional
Forest Officer, Palampur, Distt. Kangra, H.P. w.e.f. 31.3.2006 without following 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. In pursuance to notices issued by this Court, petitioner appeared, filed claim petition
stipulating therein that he had been engaged on daily waged basis on muster roll w.e.f. 22.8.1994
by forest department but no appointment order was issued and at the same time no terms and
conditions were settled by respondent department who had deputed petitioner giving verbal
directions to work in Indo German Changar Project Palampur (hereinafter called IGCP Palampur)
on which control of State Government of H.P. existed and thus petitioner claims to have worked
under the control and supervision of forest officers besides he had also worked with Bishan Dass
and Sushil Kumar and that he continued to work uninterruptedly till 31st March, 2006 without any
break and had completed 240 days in each calendar year and would thus be deemed to be in
continuous service under Section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to
as the “Act”). It is also alleged that salary of petitioner was paid by forest department and that the
work and conduct of petitioner had been found satisfactory but to his utter surprise, services of
petitioner were unlawfully retrenched/terminated by respondent w.e.f. 31.3.2006 without prior
notice. On questioning the department about his retrenchment, he was informed that Government
had decided to close the IGCP Palampur and his services were no more required. It is claimed that
at the time of his unlawful retrenchment, about 85 daily waged workmen had been retrenched
along-with petitioner. Claiming requirement issuance of three months notice pay in lieu of notice
period as required under Section 25-N of the Act the petitioner had been issued only notice for one
month but no retrenchment compensation envisaged under Section 25-N read with Section 25-F (b)
of the Act had been paid and even prior permission from the appropriate Govt. envisaged under the
relevant Act has not been sought and thus termination of petitioner is alleged to be illegal, null and
void as the respondent has failed to follow the procedure under Chapter VA and VB of the Act. It is
claimed that some of the daily wagers who worked along-with petitioner had been adjusted by the
respondent in the department arbitrarily. The petitioner along-with other retrenched workmen
consequent thereto approached the respective Government when State Government had taken
decision to reengage the retrenched daily waged workers of IGCP Palampur for which Additional
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Chief Secretary Government of Himachal Pradesh wrote letter dated 17.11.2008 stipulating that 99
daily waged worker of IGCP Palampur and 258 daily waged workers of Kandi Project retrenched
were contemplated to be reengaged by state government in different departments where vacant
posts existed in similar cadre. Thereafter, forest authorities had also asked several government
departments to send details of vacancies so as to adjust the retrenched workers as stated above. It is
alleged that petitioner was also asked to send written consent/willingness for reengagement
however it has been specifically alleged that petitioner as well as several other retrenched workmen
had submitted their written consent showing their willingness but till now, none including
petitioner has been reengaged or adjusted by respondent or the State Government. It is alleged that
Under Secretary (Revenue) Govt. of H.P. had issued a letter dated 3rd December, 2009 intimating
therein that 512 vacancies were lying vacant in revenue department and that due to shortage of staff
there existed necessity to fill up these posts and State Government had again taken the decision to
reengage daily waged workers of IGCP Palampur and IWDP (Hills) Kandi area and thereafter,
another letter was issued to the Chief Conservator (Forest) to send the category wise name of 169
daily waged worker of Kandi Project and IGCP Palampur along-with written consent of these
employees for their reengagement and seniority. It is alleged that despite that petitioner has not
been engaged so far who had conveyed his willingness to respondent lastly on 11.2.2010.
Thereafter, Labour Officer, Dharamshala tried to settle the dispute but failed and consequently
submitted report under Section 12(4) of the Act and referred the matter to appropriate Govt. i.e.
Labour Commissioner, Shimla. It is alleged that Labour Commissioner declined to make reference
for adjudication to Labour Court when petitioner assailed the decision of Labour Commissioner,
Shimla by filing CWP no. 7149/2013 which was decided on 19.9.2013 vide which appropriate
Govt. had been directed to make reference to Labour Court in pursuance to which the present
reference has been received.
3. Averments made in the claim petition further revealed that one Bishan Dass s/o Sh.
Kirpa Ram had been engaged as beldar w.e.f. 5.9.1993 in IGCP Palampur without any appointment
letter and without settling terms and conditions in writing however the said workman had worked
upto 31.12.2001 without any break who had completed 240 days in each calendar year but his
services had been unlawfully terminated by respondent department without complying the
mandatory provisions of Sections 25-F and 25-G of the Act when the said official raised demand
notice qua his illegal termination forwarding a copy to conciliation officer. After receipt of failure
report as stated above, the appropriate Govt. referred the matter to Labour Court, Dharamshala for
adjudication which had reference no.117/2007 and on merits, the above said reference was decided
in favour of Bishan Dass with full back wages, seniority with all consequential service benefits.
The Award passed by Labour Court was assailed by respondent by filing CWP no.2511 of 2009
which was dismissed by Hon’ble High Court of H.P consequent upon which the State of H.P. had
filed an appeal against order of Hon’ble High Court before the Hon’ble Apex Court by filing
Special Leave Petition no. 5588 of 2011 which too as it was even not admitted. Thereafter Bishan
Dass as worker of IGCP had been reengaged by respondent department who has been working as
class-IV on regular pay scale as govt. employee. Similarly, one Sushil Kumar s/o Shri Bhim Sen
whose services had been retrenched by respondent along-with the petitioner had sought information
under RTI Act and vide letter dated 2nd January, 1994 it was intimated that the services of Sushil
Kumar had been reengaged by respondent on 30.8.2013 who is presently working with the
respondent department. The grievance of the petitioner remains that from 2006 to 2010, the
respondent as well as higher authorities of State Government had made false assurances that
retrenched workers of IGCP Palampur including petitioner would be absorbed by giving services in
other government departments and due to this reason petitioner had not raised any industrial dispute
earlier and thus respondent cannot take plea that there was delay in raising industrial dispute.
Claiming that the act of respondent to retrench the services of petitioner w.e.f. 31.3.2006 was
highly unjustified, arbitrary, unconstitutional and against the mandatory provisions of the Act, the
same was liable to be set aside. Accordingly, prayer has been made to set aside illegal retrenchment
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order dated 31.3.2006 with further direction to respondent to reengage the services of petitioner
with full back wages, seniority, continuity with all consequential service benefits throughout with
costs of litigation.
4. Respondent resisted the claim petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad on account of delay and laches, petition being
bad for non joinder of necessary parties and that closure of IGCP Palampur was due to non
availability of funds. It is contended that in view of judgment of Hon’ble Apex Court reported in
S.C. Service Law Judgments 1996 (2) 294 titled as State of Himachal Pradesh, through the
Secretary (Rural Development) to the Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors.
it has been held that if an employee was appointed for a particular project, on closure of the project
employee concerned has to go along-with project. On merits, respondent has denied relationship of
employer and employee between the parties, however, maintained that prior to retrenchment one
month’s notice had been served upon petitioner as per law and there was no violation of any
provision of the Act. It is also contended that petitioner had been engaged subject to availability of
funds and his appointment was with the object to provide work only in IGCP Palampur. It is also
asserted that respondent department had no power to reengage the petitioner without prior approval
of the Government of H.P. although, admitted that Bishan Dass was engaged by respondent as
beldar on 5.9.1993 but petitioner was engaged by IGCP Palampur besides denied to have violated
any provisions of the Act. It is maintained that retrenchment notice as required under law was
served however admitted that Sushil Kumar was previously engaged by forest department as daily
waged worker till 1997 who afterwards joined IGCP Palampur at his sweet will and said Sushil
Kumar is stated to have been engaged as per the order of Court. Accordingly, claim petition was
sought to be dismissed.
5. The petitioner filed rejoinder to reply by respondent, reiterated his stand as maintained
in the claim petition.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of office order dated 19.11.2001 of Director
IGCP, Palampur, Ex. PW1/C letter dated 21.12.2004 regarding adjustment of daily wagers of IGCP
Palampur, Ex. PW1/D regarding representation of daily wagers of IGCP Palampur, Ex. PW1/E
copy of letter dated 17.11.2008 regarding reengagement of daily waged workers in to IGCP
Palampur, Ex. PW1/F letter dated 1.1.2009 reengagement of daily waged workers of IGCP and
IWDP (Hills) Kandi Area, Ex. PW1/G letter dated 3rd December, 2009 of Govt. of H.P. for
reengagement of daily wager workers of IGCP Palampur and IWDP (Hills) Kandi Area, Ex.
PW1/H letter dated 15th December, 2009 from Addl. Chief Secretary to the Govt. of H.P. to
reengage daily waged workers, Ex. PW1/I seniority list of daily wages driver working in IGCP
Palampur, Ex. PW1/J information under RTI Act. Ex. PW1/K information supplied under RTI Act,
Ex. PW1/L certificate concerning Shyam Lal, Ex. PW1/M another certificate concerning Shyam
Lal and letter dated 15.2.2006 as Ex. PW1/N notice qua retrenchment of Sushil Kumar on closure
of the IGCP Palampur, Ex. PW1/O letter dated 30th July, 2013 from Principal Secretary (Forests)
to the Govt. of H.P., Ex. PW1/P copy of mandays chart, Ex. PW1/Q letter dated 02.1.2014
information under RTI Act, Ex. PW1/R matriculation certificate of petitioner, Ex. PW1/S copy of
detailed marks certificate of petitioner and Ex. P-1 information regarding filling up of vacant posts
of various categories with the government departments and closed evidence.
7. On the other hand, repudiating the evidence led by the petitioner, respondent had
examined Shri B.S. Yadav, the Divisional Forest Officer who tendered/proved his affidavit Ex.
RW1/A, Ex. RW1/B list of daily wages workers working under IGCP Palampur, Ex. RW1/C
registration certificate of HP Echo Development Society Palampur, Ex. RW1/D letter dated
17.4.2006 regarding representation of daily wagers of IGCP Palampur and closed evidence.
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8. I have heard the Authorized Representative as well as Ld. Dy. D.A. for respondent
gone through evidence on record carefully relevant for disposal of the present reference.
9. From contentions raised, following issues were framed by my ld. predecessor on
26.6.2014 for determination.
1. Whether retrenchment of the services of Sh. Kultar Chand s/o Sh. Bhawani Chand
w.e.f. 31-03-2006 by the Divisional Forest Officer, Palampur is illegal and unjustified
as alleged?
....OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation as prayed for?
...OPP.
3. Whether the present claim petition/reference is not maintainable in the present form?
...OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
...OPR.
5. Whether the claim petition is bad for non joinder of the necessary party as alleged?
....OPR.
6. Relief.
10. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Issue No.3 : Unpressed
Issue No.4 : No
Issue No.5 : Unpressed
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
11. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
12. At the outset, it is apt to mention here that relationship of petitioner being
employee/workman of respondent department is in dispute. It is the case of the respondent that
petitioner had never been engaged by respondent department although admitted that petitioner was
employed in IGCP Palampur a foreign aided project. It is admitted case of respondent that the
above stated project was manned under the supervision and control of senior government officers
headed by Secretary (Forest) to govt. of H.P. and Principal Chief Conservator of Forest, HP. It is
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also admitted case of respondent that the above stated IGCP Palampur had been closed in 2006 and
on the closure of project, the Eco Development Society registered with the Registrar Cooperative
Societies in the year 1992 had handed over entire records of IGCP Palampur to respondent and that
said Eco Development Society was still in existence. It also remains the case of respondent that it
cannot reengage petitioner without prior approval of government of H.P. It is equally admitted case
of parties that no appointment letter was ever issued to petitioner and that no terms and conditions
of services of petitioner were settled. It would, therefore, be relevant to consider that in absence of
any written appointment letter and settlement of any terms and conditions, inference could be
raised that petitioner was appointed with IGCP Palampur only for a limited period or to work till
the continuation of project as has been contended by respondent in its reply in which it had relied
upon the judgment of Hon’ble Apex Court 1996 (2) S.C. Service Law Judgments 294 titled as
State of Himachal Pradesh, through the Secretary (Rural Development) to the Govt. of
Himachal Pradesh vs. Ashwani Kumar & Ors. in which the Hon’ble Apex Court had held that if
worker was appointed specifically to work in project, then on closure of project due to non-
availability of funds the temporary employees engaged in the project were not entitled to
regularization. In so far as the plea of petitioner being temporary employee appointed only for
project as contended by respondent is concerned, this has to be determined with reference to
evidence led by petitioner.
13. Ld. Authorized Representative/counsel for the petitioner has relied upon the judgment
of Hon’ble High Court of H.P. reported in 2008 LLR 763 titled as Block Development Officer,
Pragpur vs. Yoginder Kumar and Ors. in which the Hon’ble High Court relying upon the
judgment of Hon’ble Apex Court titled as S.M. Niljkar and others vs. Telecom, District
Manager, Karnataka, 2003 (97) FLR 608 has held that if workman had not been put to notice at
any stage in writing that their employment was in project, there could be no contract between the
project authorities and the workmen to work in project only. It was observed by the Hon’ble Apex
Court in judgment (2003) supra that workman ought to have been apprised or made aware of the
fact that his employment would come to an end with the termination of scheme or project. In the
case in hand, there is no iota of evidence on record to show that petitioner was appointed for IGCP
Palampur and thus petitioner being workman or temporary employee only with IGCP Palampur
could not be inferred. Be it noticed that respondent has failed to lead any evidence to establish that
petitioner was appointed to work only in IGCP Palampur. RW1 Sh. B.S. Yadav, the then Divisional
Forest Officer, Palampur had admitted in crossexamination that entire records of IGCP Palampur
was handed over by Eco Development Society to the respondent. Had the petitioner been appointed
only in IGCP Palampur, respondent being custodian of entire record of project after closure ought
to have produced such record as the same would have established that the petitioner was appointed
only for IGCP Palampur as claimed. Certainly, if any written document or record had been in
possession of the respondent as admitted by RW1 it must have been produced while leading
evidence and thus only conclusion that may be drawn is that petitioner was appointed with forest
department and was deputed to work with IGCP Palampur. The fact that petitioner was appointed
who remained on muster roll of forest department can be safely inferred from statement of
petitioner on oath in absence of any corresponding records which ought to have been produced
before this court by respondent to this effect. It is pertinent to mention here that name of present
petitioner Kultar Chand figures at serial no.47 who is shown to have been appointed on 22.8.1994
and continued to work till 2006 when he was disengaged on account of closure of project. A bare
glance at the mandays chart Ex. RW1/B would reveal that petitioner had worked for more than 240
days ever since 1994 till 2006 immediately prior to his retrenchment.
14. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
stipulating therein that he had worked on daily wage basis on muster roll w.e.f. August, 1994
without any appointment order or without settlement of any terms and conditions of his service and
that he had been deputed by respondent vide verbal order to work in IGCP Palampur which was
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under control of forest department of State Government. Cross-examination of PW1 revealed that
he had worked with forest department however has denied that he has been appointed to work in
project. Since records produced by parties clearly revealed that engagement of petitioner on muster
roll basis by the forest department but his seniority has been reflected in records of IGCP Palampur
and that retrenchment notice Ex. PW1/N was issued qua one Sushil Kumar s/o Bhim Sen. It can be
noticed that retrenchment notice of said Sushil Kumar was issued but respondent RW1 Shri B.S.
Yadav the then Divisional Forest Officer, Palampur has specifically admitted in cross-examination
that no notice was given to petitioner and at the same time, no compensation was paid to the
petitioner as per records handed over to his office by the Eco Development Society concerning
IGCP Palampur. Consequently, RW1 has clarified on oath by admitting that on closure of the
project, record in question was handed over to his office in which no copy of appointment order
existed in favour of the petitioner which establishes that IGCP Palampur had never appointed
petitioner or that petitioner was engaged only to work with IGCP Palampur as contended by
respondent. As such, from the testimony of PW1 coupled with evidence on record as stated and
case law referred above this court is left with no option but to hold that there existed relationship of
workman and employer between the parties.
15. The plea of petitioner further remains that after his retrenchment without notice as well
as without payment of compensation as required under the law, the respondent department as well
as the Government of H.P. kept assuring petitioner along-with other retrenched workers to be
absorbed in due course but despite vigorous follow up by the petitioner as well as by the other
retrenched employees they have not been absorbed by Government and forest department.
Chronology of events unfolded from pleadings and evidence on record reveal that Government of
H.P. through forest department has been trying to adjust all the retrenched workers of IGCP
Palampur. It can be noticed from letter dated 3rd December, 2009 copy of which is Ex. PW1/J
stipulating therein about reengagement of daily waged workers of IGCP Palampur as well as Kandi
Project as against 512 posts in Revenue department. Subsequently, letter dated 15.1.2009 Ex.
PW1/H was again written by Addl. Chief Secretary (Forests) to the Govt. of H.P. to Pr. Chief
Conservator of Forests for sending category wise names of list of employees of Kandi project as
well as IGCP Palampur for written consent. Ld. counsel for petitioner/claimant has contended with
vehemence that present case has similar facts to that of one Bishan Dass s/o Kirpa Ram who had
been regularized in pursuance to award passed in reference no.117/2007. It is alleged in para 11 of
claim petition that said Bishan Dass was appointed as Beldar in forest department was later deputed
to work with IGCP Palampur. It has not been disputed by ld. Dy. D.A. representing respondent that
SLP file against the order of Hon’ble High Court of H.P. affirming Award framed in favour of
Bishan Dass was not admitted. Hence, on dismissal of appeal by Hon’ble High Court of H.P.
Award passed in favour of said Bishan Dass had attained finality. It can also be inferred from reply
to para no.11 of the respondent. Be it stated that said Bishan Dass worked as Beldar with Forest
Department, later with IGCP Palampur but on raising industrial dispute was reengaged with
seniority and continuity in service. On this analogy also, petitioner in the case in hand is entitled to
get relief of being reengaged in job with seniority and continuity in service as consequential relief.
16. Repudiating the evidence led by petitioner, Sh. B.S. Yadav RW1, the then Divisional
Forest Officer Palampur has denied the claim of petitioner but admitted in cross-examination that
IGCP Palampur was under the complete control of State Government. Ex. RW1/C registration
certificate shows that H.P. Eco Development Society Palampur was registered under the
Cooperative Societies Act, 1860 and was registered on 16th February, 1993. Annexure D-8
appended with said certificate reveal that Shri R.K. Gupta, Project Director, Member Secretary of
Changar Eco Development Project, Palampur was authorized to get the H.P. Eco Development
Society, Palampur registered under the Societies Act. He was authorized to do so by Chairman who
was Secretary (Forests) to the Govt. of H.P. Similarly the society was governed through the
governing body which had Secretary (Forests) to govt. of H.P. Pr. Chief Conservator of Forests and
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other senior govt. officers as members of the governing body which shows that H.P. Eco
Development Society, Palampur was run by government through it officials only. Not only this,
office order dated 19.11.2001 Ex. PW1/B showed that the governing body’s 5th meeting was held
and powers were delegated to Dy. Director, Indo- German Eco Development H.P. by the Director
IGCP Palampur to sanction muster roll upto the extent of Rs.5,000/- and sanction bills upto 1000/-
in all respect. It establishes that the governing body was exercising control over entire functioning
of Eco Development Society as well as IGCP Palampur through government officers and even
financial powers were delegated under H.P.F.R. 1971 to Dy. Director Indo-German Changar
Project, Palampur as stated above. All these documents coupled with cross-examination of
respondent showed that after the closure of project, forest department through Divisional Forest
Officer, Palampur had received entire record of the project. It is pertinent to mention here that
despite submission of entire records by IGCP Palampur to respondent, it had failed to bring on
record muster rolls or wage bills which could remove mystery of petitioner being employed with
forest department initially or having been appointed only under the IGCP Palampur. Thus, even
when IGCP Palampur was controlled so through the governing body of H.P. Eco Development
Society which has remained in existence till now had all its members who were govt. officers as
stated above it cannot be stated that the IGCP Palampur was a project on which the government had
no control irrespective that it was foreign aided project. Not only this, on the analogy of case of
Bishan Dass as discussed in foregoing para, petitioner is entitled to be given relief of reengagement
with past service benefits with respondent.
17. It has come in evidence of the respondent that neither any compensation was paid nor
any retrenchment notice was ever served upon the petitioner who was retrenched on closure of the
project. Section 25-F of the Act mandates issuance of one month’s notice as well as retrenchment
compensation in lieu of notice to the workman in the event of retrenchment and on non-compliance
of the same the retrenchment shall be void and illegal. Ld. Authorized Representative has relied
upon the judgment of Hon’ble Apex Court reported in 2015 LLR 225 titled as Jasmer Singh vs.
State of Haryana & Anr. in which Division Bench of the Hon’ble Apex Court has held in
unequivocal terms that a workman is entitled to reinstatement with full back wages when
termination order is void ab-initio. It was specifically held by the Hon’ble Apex Court that if the
workman had completed 240 days in continuous service, preceding 12 calendar months, his
termination without compliance of the provisions of Section 25-F of the Act makes the
retrenchment/termination illegal entitling workman to reinstatement with back wages. It has come
in the evidence that petitioner has been retrenched without notice and compensation and therefore
the order of termination would be void ab-initio as it has been done without compliance of Section
25-F of the Act. I have carefully gone through the judgment of Hon’ble Apex Court in which
Hon’ble Apex Court has referred to its former judgment titled as Deepali Gundu Surwase vs.
Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors. 2013 10 SCC 324. It was observed in
para no. 22 of the judgment of (2013) that “if the employer wants to deny back wages to the
employee or contested his entitlement to get consequential benefits, then it is for him/her to
specifically plead and prove that during intervening period the employee was gainfully employed.
It was held that benefit of back wages to an employee who had suffered due to an illegal act of the
employer would amount to indirectly punishing the concerned employee and rewarding the
employer by relieving him of the obligation to pay back wages including emoluments”.
18. In the case in hand before this court, the respondent in its reply has specifically alleged
in para no. 15 that petitioner was gainfully employed who was agriculturist. Thus, allegation of
having not been gainfully employed as claimed by the petitioner was repudiated by the respondent
in its reply. In the crossexamination, PW1 has specifically admitted on oath before this court that he
was employed as agriculturist. This would also establish that after his retrenchment, petitioner
switched over to agricultural activities and thus remained gainfully employed. Ld. Dy. District
Attorney has relied upon the judgment of Hon’ble Apex Court titled as titled as North East
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Karnataka Road Transport Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which
Division Bench comprising of Justice A.R. Lakshmanan and Justice Altamas Kabir had held that
‘term gainfully employment would also include self employment wherefrom income is generated.
It was income either from employment in an establishment or from self employment merely
differentiates the sources from which income is generated, the end use being the same’. Applying
the ratio of judgment of 2007 (supra) to this case since the petitioner was earning from his
agricultural pursuits the same were sufficient to maintain him and his family. It is thus held that
petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu
Surwase’s case has held that the Labour Court was not justified in holding that merely because the
respondent was receiving agriculture income, he cannot be treated to be engaged in gainful
employment. Since the petitioner had income from agriculture pursuits for his livelihood, it cannot
be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.
In view of the forgoing discussion, it is held that the relationship of workman and employer existed
between petitioner and respondent and that petitioner was illegally retrenched without compliance
of Section 25-F of the Act although remained gainfully employed after his retrenchment but was
liable to be reengaged with seniority and in continuity in service. Issue no.1 is thus answered
holding that retrenchment of services of petitioner by respondent w.e.f. 31st March, 2006 was
illegal and unjustified and the petitioner is entitled to be reengaged along-with seniority, past
service benefits except back wages. Issues no. 1 and 2 are answered accordingly.
ISSUES NO. 3 & 5
19. Both these issues were not pressed by ld. Dy.D.A. at the time of arguments which are
decided unpressed in favour of petitioner and against respondent.
ISSUE NO. 4
20. Ld. Dy. D.A. representing respondent department has contended with vehemence that
claim petition is bad in the eyes of law on account of delay and laches. It has been pointed that
retrenchment of petitioner in this case took place on 31.3.2006 and the industrial dispute was raised
after several years of retrenchment. Repudiating the argument by ld. Dy. D.A., ld. counsel/AR for
the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court
of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be
considered by court at the time of granting final relief however in various other judgments even
longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,
Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High
Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar
view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-
cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that
the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes
Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the
ground of delay. It has been contended that delay if any raised by employer is required to be proved
as a matter of fact and that no reference made by appropriate government can be questioned on the
ground of delay alone. In the case in hand, respondent department has failed to prove on record any
material by which it could be stated that there was inordinate delay which has remained
unexplained due to which any prejudice had been caused to the respondent rather petitioner in his
evidence has highlighted and proved material facts establishing that on account of repeated
assurances of respondent department as well as government as stated in foregoing paragraphs,
industrial dispute was not raised by petitioner immediately or earlier on retrenchment and finally
raised when despite repeated assurances to absorb the petitioner in govt. department, he was not
offered any appointment or absorbed by the government or the respondent. Thus, the petition filed
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by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question thus is
accordingly answered in negative against respondent and in favour of petitioner.
RELIEF
21. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall 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 6th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 240/2013
Date of Institution : 09.12.2013
Date of decision
: 12.05.2015
Shri Tilak Raj alias Raj Kumar s/o Shri Kirpa Ram, r/o VPO Seri Kothi, Tehsil Sunder
Nagar, District Mandi, H.P.
…Petitioner.
Versus
The Divisional Forest Officer, Suket Forest Division, Sunder Nagar, District Mandi, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
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AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Tilak Raj alias Raj Kumar, S/O
Shri Kirpa Ram, R/O VPO Seri Kothi, Tehsil Sunder Nagar, District Mandi, H.P., during
2000 to 2001 and in the year 2003 By the Divisional Forest Officer, Suket Forest Division,
Sunder 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. Brief facts as set up in the claim petition under Section 10 of Industrial Disputes Act,
1947 (hereinafter referred to as the “Act”) filed by the petitioner revealed that petitioner had been
engaged as casual labourer in the month of December, 1997 by the respondent whose services had
been unlawfully disengaged by the Range Officer, Forest Range Kangoo as per the directions of
respondent in the month of April, 1998 without complying with the provisions of the Act.
Averments made in the claim petition further reveal that the services of petitioner were terminated
by verbal order of the respondent where after petitioner approached the Hon’ble Administrative
Tribunal by filing O.A. no.1714/1999 in which the respondents were directed to reengage the
petitioner in the same capacity however the said O.A. has been finally dismissed on the ground of
jurisdiction and thereafter claimant/petitioner through his counsel raised industrial dispute by
raising demand notice dated 28.9.2012. It is contended that petitioner had submitted order dated
7.7.2000 in the office of respondent in the month of August, 2000 and thereafter the petitioner had
been reengaged by the respondent but continued to work uninterruptedly till 2003. It is alleged that
the services of petitioner were again terminated by respondent giving fictional breaks due to which
he could not complete 240 days in the year 2002. The grievances of the claimant/petitioner remains
that no notice was served upon petitioner while giving him fictional break and thus fictional break
was continued to be given several times from 1998 to 2003. Averments made in the claim petition
also reveal that after termination of the services of petitioner S/Sh. Laxmi Dass, Prem Lal, Madhav
Ram, Durga Dass, Krishan Lal, Bahadur Singh and Duhlu Ram had been appointed by the
respondent at the same place where the services of petitioner were terminated but again the
petitioner was not given an opportunity and thus the respondent had violated the provisions of
Section 25-H of the Act. It is also alleged that the persons junior to petitioner namely S/Sh./Smt.
Mohinder (1.5.1999), Hari Singh (1.7.1999), Ashish Kumar (1.2.2000), Indra (1.11.2000) and
Uttam Ram (2004) have been retained continuously without any break and all the above named
workers had completed more than 240 days in each calendar year from 2000, 2001 and 2004
respectively who were working under the respondent on regular basis as forest worker in regular
pay scale as fixed by the State Government in the class-IV category. It is alleged that petitioner was
deprived of his legitimate right to work by issuance of muster roll for the whole month and the
same was done with the object that he could not complete 240 days in a calendar year whereas
other workers working at same place had been given muster roll for all month. The grievance of the
petitioner further remains that as per policy framed by State Government to regularize the services
of daily wager who had completed eight years of service in each calendar year for regularization. It
is contended that due to fictional breaks petitioner could not be regularized but his colleagues who
were also labourers having completing 240 days were regularized. As such, fictional breaks given
by respondent fell in definition of unfair labour practice and was primarily unjustified and in
violation of provisions of the Act as well as against the policy of State Government for
regularization. As such, petitioner claims for setting aside illegal termination/fictional breaks from
1998 to 2001 and 2003 directing respondent to condone the said period of the petitioner in his
continuity including regularization and also to pay the wages of breaks period. The petitioner also
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claims that the respondent be directed to regularize the services of petitioner after completion of
eight years from his initial appointment in regular pay scale w.e.f. 1.1.2006 and pay him all
consequential service benefits besides costs of litigation.
3. Respondent resisted the claim petition, filed reply inter-alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches. On merits
admitted that petitioner was engaged as casual labourer in the year 1998 to carryout the seasonal
forestry works in Kangoo Forest Range of Suket Forest Division where he initially worked for 87
days as was clear from mandays chart and the services of petitioner had never been terminated by
the respondent department. It is asserted that petitioner used to come and left the job at his own
convenience besides admitted that O.A. no.1714/1999 was filed by petitioner in the year 2000
claiming that his daily waged services had been disengaged by respondent department and the said
O.A. was as dismissed. It is claimed that petitioner was reengaged when he was approached for
work in the month of November, 2000 and he worked for 53 days and in the year 2001, the
petitioner had worked for 181 days and his services had never been terminated by respondent in
any manner. No junior to the petitioner was stated to be on the roll of the Division and that daily
wagers were called for work subject to availability of works and funds on the principle of ‘last
come first go’. It is claimed that petitioner had left the job intermittently at his own will as is
evident from the mandays chart and that the services of only those daily workers had been
regularized who had completed eight years of continuous service with minimum of 240 days in
each calendar year as per their seniority and no junior to the petitioner had been regularized and no
fictional breaks is stated to be given to the petitioner but the petitioner is stated to have left the job
at his sweet will and convenience and worked intermittently who had not completed 240 days in
each calendar year from 1998 to 2003. Accordingly, the claim petition is sought to be dismissed
stipulating that services of petitioner had never been disengaged by respondent department.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. In order to prove his case, petitioner had examined himself as PW1 tendered/proved
his affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed the evidence. On the other hand,
repudiating the evidence led by the petitioner, respondent had examined Shri Ajit Kumar Thakur,
the Divisional Forest Officer who tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B is the
mandays chart of petitioner and Pawan Kumar, Piar Singh, Tulsi Ram, Dalumbi Devi, Uttam Ram
and Jai Ram, Ex. RW1/C is the mandays chart of Prem Lal, Madhav Ram, Dhaloo Ram and
Krishan Lal whereas Exts. RW1/D to RW1/H are the mandays charts of Mohinder Singh, Hari
Singh, Ashish Kumar, Smt. Indra and Uttam Ram and closed its evidence.
6. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
7. From the contentions raised, following issues were framed by my ld. predecessor on
9.7.2014 which are as under:
1. Whether time to time termination of the services of Sh. Tilak Raj alias Raj Kumar
during the year 2000 to 2003 by the Divisional Forest Officer, Suket Forest Division,
Sunder Nagar without complying with the provisions of the Industrial Disputes Act,
1947 is illegal and justified?
...OPP.
2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,
seniority, past service benefits and compensation etc?
...OPP.
3. Relief.
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8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Yes
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
10. Admittedly petitioner was initially engaged as casual labourer in the year 1998 and that
petitioner was still employed with respondent on the date of reference from appropriate
government. The grievance of the petitioner remains that respondent had verbally appointed him
and also terminated/disengaged him through Range Officer, Forest Range of Kangoo when
petitioner had filed O.A. no.1714/1999 before the Hon’ble Administrative Tribunal which was
dismissed on the account of jurisdiction. The grievance of petitioner remains that he was employed
as per verbal order in 1998 but no letter of appointment was given. The petitioner has testified on
oath by swearing affidavit Ex. PW1/A under Order 18 Rule 4 CPC the manner in which he was
initially appointed in the year 1997 when he was disengaged by Range Officer, forest range
Kangoo as per the direction of respondent in April, 1998 and thereafter he was employed in
pursuance to filing of O.A. no.1714/1999. Further, petitioner continued working till the date of
filing of claim petition and that except for years 1998 to 2003, he had worked for more than 240
days. This fact has not been disputed by Shri Ajit Kumar Thakur, DFO in his statement before this
court on 7.1.2015 in which he has specifically admitted that in the years 2002 and from 2004 to
2014 the petitioner had completed 240 days in each calendar year. Although, petitioner has
admitted in his cross-examination that only those persons have been regularized by govt. who had
completed eight years of regular service but has admitted that petitioner was working still with the
respondent. It would be also pertinent to refer to mandays chart relied upon by the respondent in
which the petitioner is shown to have worked for 87 days in the year 1998, 53 days in 2000, 181
days in the year 2001 and 175 days in 2003 and except these years till now in 2014-2015 the
petitioner has worked for more than 240 days in each calendar year. The other labourers namely
Mohinder Singh had worked for 304 days in the year 2000, 341 days in 2001, 358 days in 2002 and
240 days in 2003. Similarly Sh. Hari Singh had been given appointment in 2000 when he had
worked for 329 days, 245 days in 2001, 270 days in 2002 and 265 days in the year 2003. Ex.
RW1/F is the muster roll of Ashish Kumar which showed that the said employee had worked for
323 days in the year 2000, 282 days in 2001, 290 days in 2002 and 265 days in 2003. Similarly
Smt. Indra had worked for 31 days in 2000, 285 days in 2001, 270 days in 2002 and 281 days in
2003. Thus, the mandays charts of the above named officials clearly indicate that in the year 2001
to 2002 and 2003 there was sufficient work and funds available with the respondent which belied
its plea but the claimant/petitioner was not given work of 30 days in a month whereas other co-
workers namely Mohinder Singh, Hari Singh, Ashish Kumar had been given muster roll for more
than 300 days in a year. Similarly, in the year 2001 these officials had again been given work for
341 days, 245 days and 282 days respectively and Smt. Indra was also given muster roll for 285
days in the year 2001. All the four workers were given muster roll for more than 240 days in the
years 2002 and 2003 respectively as can be gathered from Ex. RW1/D to Ex. RW1/H. Thus,
respondent while issuing muster roll had not adopted fair policy rather it had adopted the method of
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pick and choose when the respondent allowed some of the labourers more number of days and
declined this opportunity similarly situated persons including the petitioner so that petitioner could
not have completed 240 days which apparently projects unfair labour practice and the petitioner
shall be deemed to be in continuous service as the plea of respondent that petitioner left work of his
own and was employed intermittently is not substantiated from any corresponding record showing
that petitioner was ever given show cause notice by respondent or any disciplinary action had been
taken qua his non attendance in the office for the place of work.
11. It is settled law that abandonment has to be established by leading evidence. It is a
question of fact which has to be determined in the light of surrounding circumstances as has been
held in State of H.P. vs. Bhatag Ram & Anr. Reported in 2007 LHLJ 903. There is no iota of
evidence on record that petitioner had abandoned the job rather it is uncorroborated testimony of
respondent which is not reliable. In so far as the plea of respondent that petitioner was employed in
seasonal forestry work also merits rejection in view of overwhelming evidence of record which
would show that several workers who had been appointed in 2000 and 2001 were given muster roll
for more than 10 months in a year i.e. 300 days or more then how the plea of work being seasonal
in nature can be entertained when workers worked throughout the years as stated above. Thus, the
plea of seasonal work as stated by the respondent in its reply is nothing but a futile attempt to
deny/defeat the claim of petitioner. On the point of violation of the provisions of Section 25-H of
the Act is concerned, suffice would be to state here that Mohinder Singh, Hari Singh, Ashish
Kumar and Indra had been appointed in the year 2000 whereas the petitioner had been appointed in
the year 1998. All the above named daily wagers were still employed with the petitioner but they
had never been given any break and thus the petitioner was also discriminated while engaging the
persons at the time of termination of the services of the petitioner without any valid or cogent
reason instead the object of respondent in giving fictional breaks primarily remained that petitioner
did not complete 240 days were required for regularization of his services so as per policy of State
Government. As such, it is also held that the respondent had violated the provisions of Section
25-H of the Act while giving fictional breaks to the petitioner arbitrarily discriminating with other
casual workers who were similarly situated in view of the above said discussions. Issues no. 1 & 2
are answered in affirmative.
RELIEF
12. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement, the
breaks given by the respondent being fictional in nature shall have no effect on the seniority and
continuity of service of the petitioner and his seniority shall be reckoned from his initial date of
engagement. Accordingly, claim of petition is hereby allowed and reference is accordingly
answered in his favour. The petitioner shall thus be deemed to be in continuous service of
respondent with all consequential benefits except back wages. He shall, however, be considered
for regularization by respondent at the time when his juniors had been regularized as per policy
governing daily wagers as framed by State Govt. and operative from time to time. The parties,
however, shall bear their own costs.
13. The reference is answered in the aforesaid terms.
14. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
15. File, after due completion be consigned to the Record Room.
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Announced in the open Court today this 12th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. 191 / 2015
Sh. Sukh Ram s/o Shri Fagnu Ram, r/o Village Outpur Makan, P.O. Outpur, Tehsil Joginder
Nagar, District Mandi, H.P.
…….Petitioner.
Versus
The Executive Engineer, H.P.P.W.D., (B&R) Division Joginder Nagar, District Mandi, H.P.
...….Respondent.
14-05-2015 Present: None for the petitioner.
Sh. Sanjeev Singh Rana, Dy.D.A. for the respondent.
Case called several times but none has appeared on behalf of the petitioner despite due
service. It is 11.30 A.M. Be awaited and put up after lunch hours at 2.30 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
_______
14-05-2015 Present : None for the petitioner.
Sh. Sanjeev Singh Rana, Dy.D.A. for the respondent.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.38 P.M. None appearance of petitioner or his ld. counsel today is indicative of the fact that
petitioner is not interested to pursue present reference and accordingly reference is disposed off for
non-prosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
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Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order
14-05-2015
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. 246 / 2014
Sh. Mahender Singh s/o Sh. Sobha Ram, Village-Punjail Khurd, P.O. Sikroha, Tehsil Sadar,
District Bilaspur, H.P.
…….Petitioner.
Versus
i)
M/S GVK Emergency Management & Research Institute, J.P. Motor Building, Village
Anji Barog Bye Pass, Solan- 173211 (H.P.) employed through
ii) M/S Adecco Flexi One Workforce Solution Pvt. Ltd., C-127, Basement Level, Satguru
Infotech, Phase-VIII, Industrial Area, Mohalli – 160071 (Area Office).
...….Respondents.
14-05-2015 Present : None for the petitioner.
Sh. Sandeep Rana, adv. csl. for the respondent no.1.
Sh. Manish Katoch, adv. csl. for the respondent no.2.
Power of attorney has been filed by ld. csl. for the respondent no.1. Case called several
times but none has appeared on behalf of the petitioner despite due service. It is 11.40 A.M. Be
awaited and put up after lunch hours at 2.35 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
________
14-05-2015 Present : None for the petitioner.
Sh. Sandeep Rana, adv. csl. for the respondent no.1.
Sh. Manish Katoch, adv. csl. for the respondent no.2.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.45 P.M. None appearance of petitioner or his ld. counsel today is indicative of the fact that
petitioner is not interested to pursue present reference and accordingly reference is disposed off for
non-prosecution.
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Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the order be sent to the appropriate Government for information and further
necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
14-05-2015
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. : 333/2014
Smt. Rasilu Devi s/o Shri Gontha Ram, r/o Village Bharan, P.O. Outpur, 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.
16-05-2015 Present
: Sh. Suresh Kumar Sharma, adv. csl. for the petitioner.
Sh. Sanjeev Singh Rana, Dy. D.A. for the respondent.
Heard. Statement of ld. csl. for the petitioner for not pressing of reference is recorded
separately and placed on file.
2. In view of statement made by ld. csl. for the petitioner, the claim of the petitioner is
disposed of as withdrawn.
3. Ordered accordingly. The parties to bear their own costs.
4. The reference is answered in the aforesaid terms.
5. Let copy of the Order/Award be sent to the appropriate Government for information
and further necessary action / publication.
6. The file, after completion be consigned to the records.
Announced:
16.5.2015
By order,
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA,PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL,KANGRA AT DHARAMSHALA (HP
Ref. No.
: 248/2013
Date of Institution
: 23.12.2013
Date of decision
: 23.05.2015
Shri Rakesh Kumar s/o Sh. Chet Ram, r/o Village Parchu, P.O. Sajau Piplu, Tehsil
Sarkaghat, Distt. Mandi, H.P.
…Petitioner.
Versus
1. The Superintending Engineer, Electrical Circle, HPPWD, Shimla-9
2. The Executive Engineer, Electrical Division, HPPWD Mandi, H.P.
….Respondents.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
2. “Whether termination of the services of Sh. Rakesh Kumar S/O Sh. Chet Ram R/O
Village- Parchu, P.O. Sajau Piplu, Tehsil Sarkaghat, Distt. Mandi, H.P. by i) The
Superintending Engineer, Electrical Circle, HPPWD, Shimla-9 & ii) The Executive
Engineer, Electrical Division HPPWD Mandi, (H.P.) w.e.f. 01.4.2001 without
following 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 employers?”
2. In pursuance to receipt of reference aforestated, notices were issued to parties. The
claimant/petitioner has filed statement of claim. Brief facts as set up in the claim petition reveal that
petitioner had been appointed as electrician/electrical mistry vide appointment order No.PW-ESD-
E-4/98-934-28 dated 2.11.1998 issued by Assistant Engineer for 89 days and in pursuance to the
said appointment letter, petitioner had joined on 2nd December, 1998 who continued to work
uninterruptedly till 31st March, 2001. The grievance of petitioner remains that after completion of
89 days, petitioner continued to remain in service but fictional break had been given from time to
time petitioner so that petitioner did not complete 240 days and this practice had been adopted by
the respondent department till 31.3.2001. It is alleged that the services of petitioner had been
retrenched by Assistant Engineer at the direction of respondent no.2 on 1.4.2001 without following
relevant provisions of Industrial Disputes Act, 1947 (hereinafter referred to as the “Act”). It is
claimed that while terminating the services of petitioner neither required notice was served nor
charge sheet had been raised or any enquiry had been conducted against him and at the same time
one month pay in lieu of notice period too was not given. It is alleged that the respondents had also
not followed the provisions of Section 25-G of the Act which postulates principle of ‘Last come
First go’ according to which the workman who joined in the last was to be retrenched first and that
the respondents had retained junior persons to that of petitioner and that even after termination of
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services of petitioner new appointments have been made without affording any opportunity to the
petitioner in violation of the provisions of Section 25-H of the Act alleging further that his
retrenchment was wrongly done and assailed decision of the respondents by filing O.A. 353/2001
against his illegal termination before the Hon’ble Administrative Tribunal whereupon the
respondent no.2 had issued registered retrenchment notice under Section 25-F of the Act vide letter
dated 4.1.2002. It is claimed that petitioner had only worked upto 31st March, 2001 when his
services were verbally terminated by the respondent department so the question of termination of
services of petitioner w.e.f. 31.3.2002 did not arise at all. The grievance of the petitioner thus
remains that notice in question stipulated that retrenchment had been made due to insufficient of
work and funds with further assurance that petitioner’s services would be reengaged as and when
work and funds were available or on his seniority. It is alleged that 36 daily waged workers had
been terminated by respondent no.2 along-with petitioner on 1.4.2001. It further transpires from the
claim petition that O.A. no.353/2001 filed by petitioner was dismissed on the ground of jurisdiction
and the order of dismissal of petition before the Hon’ble Administrative Tribunal was not notified
to him by his counsel conducting the case and when the petitioner approached the counsel in the
year 2009 i.e. about three years from the date of judgment, petitioner was informed that his case has
been dismissed by the Hon’ble Administrative Tribunal, H.P. on the ground of jurisdiction with
liberty to the petitioner to approach the appropriate forum for redressal of his grievances.
Thereafter petitioner raised the demand notice before Labour-cum-Conciliation Officer, Mandi and
conciliation could not be effected as respondents did not accept the demand of petitioner vide
report no. 254/10-2300 dated 22.11.2011 failure report was sent to appropriate government which
declined to make further reference to Labour Court vide order dated 30.3.2012 whereupon
petitioner again filed CWP No. 8242/2012 which had been decided on 29.4.2014 directing
appropriate government i.e. Labour Commissioner, H.P. to make reference who forwarded the
petitioner’s case to the Labour Court and in compliance of the order of the Hon’ble High Court,
appropriate government had made reference vide notification dated 6.12.2013. It is alleged that the
services of Jeet Singh have been terminated along with petitioner on 1st April, 2007 and later said
Jeet Singh was reengaged by respondent no.2 during the conciliation proceedings. The services of
Smt. Suman, Harish Kumar and Rakesh Kumar were again engaged by respondent no.2. Thus,
alleging the act of respondent in terminating the services of petitioner to be illegal and unjustified,
prayer has been made to set aside termination order dated 1.4.2001. It is further prayed that
petitioner having not been employed anywhere and not gainfully employed he was entitled for back
wages from the date of his illegal termination. Accordingly, petitioner besides praying for setting
aside illegal termination dated 1.4.2001 has also prayed that respondent be directed to reinstate
petitioner in service with full back wages, seniority and continuity in service with all consequential
service benefits.
3. Respondents filed joint reply contested the claim petition inter- alia taken preliminary
objections of maintainability, claim petition being bad on account of delay and laches and estoppel.
On merits admitted that petitioner was engaged as casual labourer on requirement basis for the
electrical installation work on daily wages in December, 1998 where he worked till date of March,
2001 intermittently. Factum of fictional breaks having been given by the respondents is
emphatically denied. It is also contended that since petitioner had not completed 240 days
continuously in a calendar year, question of issuance of show cause notice was not required. It is
also asserted that petitioner used to come and work at his own sweet will and at the same time he
had abandoned his services and worked as an agriculturist where he was gainfully employed. It has
been emphatically denied that any junior to the petitioner had been appointed or retained in service
and that only those workmen had been reengaged whose orders were passed by the Labour Court
and denied allegation of violation of any provisions of the Industrial Disputes Act, 1947. In so far
as the pendency of O.A. no.353/2001 was concerned, it has been admitted that during the pendency
of the case notice dated 4.1.2002 under Section 25-G to the petitioner was issued inadvertently
instead due to non availability of work and funds the petitioner was disengaged. It is further
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reiterated that due to non-availability of work and funds, the services of petitioner had been
terminated. It is also alleged that petition filed by the petitioner was dismissed by the Hon’ble
Administrative Tribunal, H.P. and that order remained unchallenged and that petitioner had made
demand notice at belated stage. It is admitted that petitioner has raised industrial dispute which too
was dismissed by Labour Commissioner, H.P. vide order dated 30th March, 2012. Factum of
failure of conciliation proceeding was not disputed and petition was accordingly sought to be
dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. In order to prove his case, petitioner has proved in evidence his own affidavit Ex.
PW1/A under Order 18 Rule 4 CPC tendered/proved retrenchment notice Ex. PW1/B copy of
memorandum dated 2.11.2009, Ex. PW1/C copy of retrenchment notice, Ex. PW1/D copy of letter
dated 4.9.2006 from the Financial Commissioner-cum-Secretary (PW) to the Engineer-in-Chief
(IPH) regarding maintenance of casual registers/casual cards of daily rated workmen-deployment
and termination of such workmen, Ex. PW1/E is the letter dated 14th September, 2014 pertaining
providing of muster roll for complete month to the workers in PWD without break instead of
15/18/20 and 30 days with intermittent breaks, Ex. PW1/F is the copy of order dated 3.3.2006
passed in O.A. No.353/2001, Ex. PW1/G is the demand notice of petitioner under Section 2-A of
the Industrial Disputes Act, 1947, Ex. PW1/H is the coy of order dated 30th March, 2012, Ex.
PW1/I is the copy of order dated 29.4.2013 of Hon’ble High Court passed in CWP no.8242/2012
and Ex. PW1/J is the copy of working days of Smt. Suman and closed the evidence. On the other
hand, the respondent had examined Shri Sanjay Kumar the then Executive Engineer, Electrical
Division, HPPWD, Mandi tendered/proved Ex. RW1/B which is the copy of mandays chart of
petitioner and Ex. RW1/C is the copy of order dated 30th March, 2012 which corresponds to Ex.
PW1/H and closed the evidence.
6. I have heard the Authorized Representative/counsel as well as Ld. Dy. D.A. for
respondent gone through evidence on record carefully relevant for disposal of the present reference.
7. From the contentions raised, following issues were framed by my ld. predecessor on
9.7.2014 which are as under:
13. Whether the termination of services of Sh. Rakesh Kumar s/o Sh. Chet Ram by the
Executive Engineer, Electrical Division, HPPWD Mandi w.e.f. 01.04.2001 is illegal
and unjustified as alleged?
...OPP.
14. If issue No.1 is decided in affirmative, to what amount of back wages, seniority, past
service benefits and compensation are entitled to the petitioner?
...OPP.
15. Whether the petitioner is estopped from preferring the claim. If so, its effect? ...OPR.
16. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No. 1 : Yes
Issue No. 2 : Discussed
Issue No. 3 : No
Relief : Petition is allowed per operative part of the Award.
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REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
10. In so far as the plea of claimant/petitioner qua violation of the provisions of Section
25-F of the Act is concerned, it would be relevant to consider mandays chart Ex. RW1/B. It is
evident from this document that petitioner was appointed in December, 1998 when he worked for
29 days, in the year 1999 from January till December he had worked for 232 days, in the year 2000
from January to December he had worked for 231 days and in the year of his termination i.e. 2001
petitioner had worked only for about three months when he worked for 58 days. In the witness box
petitioner has specifically admitted that he had not worked for 240 days in any of the years he
remained employed with respondent. Ld. Dy. D.A. for the respondent has contended with
vehemence that for applicability of Section 25-F, it was required to establish by claimant/petitioner
that petitioner had worked for 240 days immediately preceding his termination. It is also contended
that if version of the petitioner is taken as correct he admits so who had been disengaged vide
verbal order on 31.3.2001 whereas the case of the respondents remained that petitioner had not
worked for 240 days immediately preceding his termination and that the respondents had also
issued notice Ex. PW1/C vide which paucity of work and funds were shown to be the prime cause
for retrenchment and accordingly termination of petitioner was made w.e.f. 31.1.2001. Thus, it is
established from evidence led by petitioner that services of petitioner was terminated on 31st
March, 2001 and thus question of issuance of notice for termination in the year 2002 by
respondents had no value in the eyes of law.
11. In so far as plea qua non compliance of the provisions of Section 25-F of the ‘Act’ was
concerned, Ld. Authorized Representative/counsel for the petitioner has repudiated the arguments
of Ld. Dy. D.A. He has relied upon judgment of Hon’ble Apex Court reported in 2003 LLR 1097
titled as M/s. U.P. Drugs & Pharmaceuticals Co. Ltd. vs. Ramanuj Yadav & Ors. In the
aforesaid judgment Hon’ble Apex Court while delaing with the Uttar Pradesh Industrial Disputes
Act, 1947 Section 6N read with 2(g) held that the period of 240 days would means 240 days in any
calendar year preceding termination. It was observed by the Hon’ble Apex Court that termination
of the workmen having not worked for 240 days in preceding 12 months a year but having worked
for similar duration and in earlier years would tenable to illegal retrenchment and for nonpayment
of retrenchment compensation, workman would be entitled to reinstatement since the U.P.
Industrial Disputes Act does not provide word ‘preceding’ 12 months. It was observed that Section
2(g) of U.P. Industrial Disputes Act does not require a workman to avail the benefit of the deeming
provision of completion of one year of continuous service in the industry, to have worked for 240
days during preceding period of 12 calendar months and that the word preceding has been used in
Section 25-B as incorporated in the year 1964 but Section 2(g) does not use the word ‘preceding’.
Since the Hon’ble Apex Court has not dealt with the provisions of Industrial Disputes Act rather
under the Uttar Pradesh Industrial Disputes Act, 1947 in which there was no requirement of 240
days preceding the date of retrenchment or termination as this period could be counted in any of the
years in which workman had worked but in the case in hand before this court provisions of
Industrial Disputes Act would only be attracted and not the U.P. Industrial Disputes Act which is
concerning U.P. State. Thus, provisions of Industrial Disputes Act require working of workman for
240 days immediately preceding his termination but in the case in hand petitioner himself admits
on oath to have not worked for 240 days as stated by him on oath and same at time mandays has
not been disputed by petitioner also show that in particular year i.e. on being terminated in March,
2001 preceding 12 months petitioner had worked for 212 days only and thus requirement of having
worked for 240 days was not at all established. Since the petitioner had failed to have proved to
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have worked for 240 days, certainly provisions of Section 25-F of the Industrial Disputes Act did
not apply in his case and it cannot be stated that respondents while terminating the services of
petitioner was required to comply with the provisions of Section 25-F of the Act as petitioner had
not factually worked for 240 days.
12. Another allegation of petitioner against the respondents remained that persons junior to
petitioner in service were still continuing whereas petitioner had been wrongly retrenched from
service. It has been argued that provisions of Section 25G-G and Section 25-H of Industrial
Disputes Act have not been complied. Further reliance has been placed upon cross-examination of
respondent Shri Sanjay Kumar RW1, Executive Engineer, Electrical Division, Mandi. In his
crossexamination, RW1 has admitted that he did not know that 105 workmen had been retrenched
on 1.4.2001. He has specifically admitted that Smt. Suman had worked with petitioner but she too
was removed from service in 2001. Not only this, respondent has admitted that one Jeet Singh was
appointed in May, 1999 who was also removed from service on 31.3.2001 but was reemployed in
conciliation proceedings. Stepping into witness box as PW1 petitioner has deposed that initially he
had approached the Hon’ble Administrative Tribunal, H.P. when his services had been retrenched
but the said petition filed by him was dismissed on the ground of jurisdiction. In his affidavit under
Order 18 Rule 4 CPC petitioner has alleged that respondent had violated the principle of ‘last come
first go’ as the persons who were junior to him have been retained in service and that even after the
termination of the services of petitioner, new employees were appointed by the respondent without
giving an opportunity to the petitioner and thus respondent had violated the provisions of Section
25-H of the Act. Ex. PW1/J is the mandays chart of Smt. Suman who is shown to have been
appointed in August, 1999 whereas petitioner had been appointed in December, 1998. As per
appointment order Ex. PW1/B that Smt. Suman was junior to petitioner. Even Jeet Singh was
appointed in May, 1999 was also junior and both these persons appeared to have been disengaged
on the same date but were reappointed. It has been stated by RW1 in his cross-examination that Jeet
Singh was appointed in conciliation proceedings and that Smt. Suman too was employed which
showed that while disengaging petitioner his seniority was ignored as juniors were retained. Not
only this, his juniors namely Smt. Suman and Shri Jeet Singh have been reemployed but petitioner
has not been reemployed. There is nothing in evidence led by the respondents that petitioner was
called upon to join after his retrenchment as it has no corresponding evidence on record which
would establish that while engaging Smt. Suman or Jeet Singh petitioner was ever asked or given
any opportunity to work with the respondent. As such, respondent has manifestly committed breach
of provisions of Section 25-G as well as 25-H of the Act entitling petitioner for reinstatement,
seniority and continuity in service.
13. In so far as the plea of having remained employed, it cannot be accepted as correct as
petitioner is young person ageing about 43 years on the date of cross-examination before this court
who could have earned from agriculture. Not only this, petitioner had also admitted on oath that he
had been doing agricultural work when disengaged or his services were illegally terminated he had
about two or three fields for agriculture purposes. As such respondents are held to have violated the
provisions of Section 25-G as well Section 25-H of the Act as for the applicability of Section 25-G,
it is not necessary that claimant/petitioner should have worked for 240 days as has also been held
by Hon’ble Apex Court in case title Central Bank of India vs. S. Satyam, 1996 (5) SCC 419. The
plea of abandonment has been raised by respondents is also not substantiated from reliable
evidence more so when petitioner has revealed that no muster roll has been issued to petitioner but
version of RW1 that petitioner used to come of his own for work and left the job but there is
nothing in evidence to show that petitioner was ever notified about his illegal or unauthorized
absence by respondent. Thus in absence of any evidence establishing that any proceeding was
initiated against petitioner due to non attendance or that he had left the job rather fact of
abandonment had to be proved by the respondents. Thus, respondents having failed to prove
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abandonment as claimed respondents are held to have also violated the provisions of Sections 25-G
and 25-H of the Act. Hence, petitioner is liable to be reengaged with continuity and seniority in
service. In so far as plea of back wages is concerned, the same is denied in view of the fact that
petitioner was himself earning from his agricultural pursuits the same were sufficient to maintain
him and his family. It is thus held that petitioner was gainfully employed. Be it stated here that
Hon’ble Apex Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya
(D. ED) & Ors. 2013 10 SCC 324 has held that the Labour Court was not justified in holding that
merely because the respondent was receiving agriculture income, he cannot be treated to be
engaged in gainful employment. Since the petitioner had income from agriculture pursuits for his
livelihood as has come in evidence in the case in hand, it cannot be stated that petitioner was not
gainfully employed and thus would not be entitled to back wages. In view of the forgoing
discussion, it is held that the relationship of workman and employer existed between petitioner and
respondent and that petitioner was illegally retrenched without compliance of Sections 25-G and
25-H of the Act although remained gainfully employed after his retrenchment but was liable to be
reengaged with seniority and continuity in service. Issue no.1 is thus answered holding that
retrenchment of services of petitioner by the respondent w.e.f. 31st March, 2001 was illegal and
unjustified. As such, even petitioner is not entitled to back wages as stated above but he shall be
entitled to all other consequential benefits including seniority and continuity in service Issues no. 1
and 2 are answered accordingly.
ISSUE NO. 3
14. Ld. Dy. D.A. has contended that claimant/petitioner is estopped to file the present
claim petition but nothing has been shown which would estopp the claimant/petitioner for seeking
relief for which he has come to the court. Thus, the plea of respondents merits rejection and issue in
hand is answered in negative in favour of the petitioner and against the respondents.
RELIEF
15. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondents are hereby directed to re-engage the petitioner forthwith. The petitioner
shall be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. The parties, however, shall bear their own costs.
16. The reference is answered in the aforesaid terms.
17. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
18. File, after due completion be consigned to the Record Room.
Announced in the open Court today this 23rd day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 245/2013
Date of Institution : 19.12.2013
Date of decision : 23.5.2015
Shri Kamal Singh s/o Shri Prithi Singh, r/o Village Dallewal, P.O. Binewal, Tehsil
Garshankar, District Hoshiarpur, Punjab.
…Petitioner.
Versus
The Employer/Managing Director, M/s. H.N. Steel Casting (P) Ltd. VPO Bathari, Tehsil
Harili, District 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 : Respondent exparte
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Shri Kamal Singh, S/O Shri Prithi Singh, R/O
Village Dallewal, P.O. Binewal, Tehsil Garshankar, District Hoshiarpur, Punjab. w.e.f. 13-
08-2012 (as alleged by worker) by the Employer/Managing Director, M/S H.N. Steel
Casting (P) Ltd., VPO Bathari, Tehsil Haroli, District Una, 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.
In pursuance to receipt of reference from appropriate govt. notices were issued to
parties and that petitioner/claimant has appeared through his Authorized Representative but
respondent company did not appear to contest the petitioner’s claim.
3. Brief facts as set up in the claim petition reveal that petitioner was employed as
security guard by respondent w.e.f. 24.12.2005 who continuously worked up-to 12.8.2012 with
respondent. It is alleged that petitioner was deputed to work for 12 hours daily which was against
the provisions of Factory Act, 1948 and Payment of Wages Act, 1936. It is further alleged that
when petitioner had reported for duty on 13.8.2012, the respondent had refused him to join duty
and orally told him that his services were no more required.
4. The petitioner had requested the respondent to re-engage him, but of no avail. He had
thereupon raised demand notice and as a sequel thereto the matter has been referred to this Court.
The petitioner thus avers that his termination is violative of the provisions of Section 25-F (a), 25-F
(b) and 25-N of the Act, 1947 (hereinafter referred to as the Act). He thus seeks his re-engagement
with all consequential benefits including full back wages.
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5. The respondent had been duly served as per report dated 9.4.2015 of Labour Inspector,
Una but the representative of the respondent company or any counsel on behalf of the respondent
had not put in appearance. However none appeared on behalf of the respondent and vide order
dated 29.4.2015 the respondent has been proceeded exparte.
6. At the outset, it would be apt to mention here that ld. Authorized Representative for the
petitioner vide separate statement dated 27.4.2015 did not press the plea of violation of the
provisions of Section 25-G of the Act. Since petitioner does not press the plea of alleged violation
of the provisions of Section 25-G the same plea merits rejection.
7. To prove his case, petitioner had stepped into the witness box as PW1 sworn in
affidavit Ex. PW1/A under Order 18 Rule 4 CPC. While appearing as PW1 he has reiterated
pleadings raised by him in his claim. The petitioner has deposed that he had continuously worked
with the respondent from 24.12.2005 till 12.8.2012 but his services were disengaged orally without
any notice and as such the disengagement of the petitioner is against the provisions of Sections 25-
F and 25-N of the Act. The affidavit Ex. PW1/A of petitioner shows that petitioner was working as
a security guard and he was drawing a salary of Rs.5200/- per month from the date of his initial
appointment with the respondent. Un-rebutted testimony of the petitioner thus shows that petitioner
had completed 240 days prior to his disengagement and non compliance of the provisions of
Section 25-F of the Industrial Disputes Act entitles petitioner relief sought for as termination of
service is illegal and void as respondent was duty bound to have issued notice qua retrenchment or
one month’s salary in lieu of notice to petitioner envisaged under Section 25-F of the Industrial
Disputes Act. It is apparent from evidence on record that before dispensing with services of
petitioner even no notice has been issued to the petitioner what to say for payment of compensation
i.e. salary of one month in lieu thereof. The action of the respondent management is thus violative
of the provisions of Section 25-F of the Industrial Disputes Act and that disengagement of the
services of petitioner is thus illegal and void in the eyes of law and the same is liable to be set aside
and petitioner is liable to be reengaged by respondent company. In so far as claim of back wages is
concerned the petitioner has been terminated about two years before as per his claim who has
discharged his initial onus of proving that he was not gainfully employed during the period of his
forced idleness. Non appearance of respondent to contest the claim petition is manifestly suggestive
of the facts that respondent had nothing to put forth any fact to controvert the allegation of
claimant/petitioner including back wages. Keeping in view of age of claimant/petitioner on the date
of disengagement and surrounding circumstances and facts highlighted above, it would be
appropriate if petitioner is awarded 25% back wages from date of illegal termination till
reengagement. Hence, petitioner is held entitled for reengagement in service with seniority and
continuity in service along-with back wages of 25% from the date of his illegal termination and
accordingly respondent is directed to reengage the petitioner forthwith.
8. The reference is decided in the aforesaid terms.
9. There shall be no orders as to costs.
10. The reference is answered accordingly. 11. A copy of this award be sent to the
appropriate Government for publication in the official gazette and the file after completion be
consigned to the record room.
Announced in the open Court today the 23rd day of May, 2015.
By order,
(K. K. SHARMA)
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, DHARAMSHALA, H.P.
Ref: No. : 24/2015
Smt. Geeta Devi w/o Shri Kanshi, r/o Village Shilah, P.O. Khazoor, Tehsil Joginder Nagar,
District Mandi, H.P.
…….Petitioner.
Versus
The Executive Engineer, B&R Division HPPWD, Joginder Nagar, District Mandi, H.P.
...….Respondent.
26-02-2015 Present
: Sh. N.L. Kaundal, A.R. for the petitioner.
None for the respondent.
Letter of authorisation has been filed by the authorised representative for the petitioner
which be placed on record. Heard. Authorised representative for the petitioner has stated at bar that
industrial dispute raised by present petitioner has already been decided by this Court in pursuance
to reference made by the government. Thus, petitioner now does not want to proceed with this
present reference and has prayed its dismissal. Accordingly, authorised representative for the
petitioner in his statement on record has not pressed her claim besides prayed for its dismissal. The
present reference received is, thus, dismissed as withdrawn.
2. Ordered accordingly. The 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.
By order,
(K. K. SHARMA)
Announced:
Presiding Judge,
26.02.2015
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 14/2013
Date of Institution : 18.02.2013
Date of decision
: 29.05.2015
Shri Shesh Ram s/o Shri Khube Ram, r/o V.P.O. Khuhan, Sub Tehsil Balichowki, District
Mandi, H.P..
…Petitioner.
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Versus
The Divisional Forest Officer, Lahaul Forest Division Keylong, District Lahaul & Spiti,
H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. Chetan Sharma, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether termination of the services of Shri Shesh Ram, S/O Shri Khube Ram, R/O V.P.O.
Khuhan, Sub-Tehsil Balichowki, District Mandi, H.P. w.e.f. 23-10-2006 by The Divisional
Forest Officer, Lahul forest Division Keylong, District Lahaul & Spiti, H.P. 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
worker is entitled to from the above employer?”
2. In pursuance to receipt of reference from appropriate government, notices were issued
to the parties in pursuance to which claimant/petitioner has filed statement of claim.
3. Brief facts as stipulated in the claim petition reveal that petitioner was engaged as daily
waged forest worker in Kokser Beat, Range Office Keylong, Forest Division Lahaul in the year
2002 where he worked upto 22.10.2006. The grievance of petitioner remains that his services had
been terminated verbally by respondent on 23.10.2006 without assigning any reason and at the
same time without complying with the mandatory provisions of the Industrial Disputes Act, 1947
(hereinafter referred to as ‘the Act’). It is alleged that neither any notice nor compensation in lieu of
notice period had been paid to petitioner by respondent department before terminating the services
in violation of the provisions of Section 25-F of the Act. It is claimed that work and conduct of
petitioner had always remained satisfactory and that petitioner had completed 160 days in each
calendar year while working in Forest Division Lahaul. It further remains the grievance of
petitioner that several other persons who were junior to petitioner namely Yaga Chand, Nand Lal,
Rai Chand, Dechen Wangmo and Jayanti Devi whose services were not terminated and were still
working with the respondent/department and that petitioner’s services were unlawfully terminated
and while doing so, respondent had violated the provisions of Section 25-G of the Act as the
doctrine of ‘Last come First go’ was not followed by respondent. It is alleged that petitioner was
performing his duties properly diligently upto satisfaction of his superiors but respondent
department arbitrarily removed him from service despite sufficiency of work. It is contended that
respondent department used to give fictional breaks to the petitioner and the said fictional break
was liable to be declared illegal as the same tentamount to unfair labour practice. It further
remains the case of petitioner that after his termination, he had remained unemployed as till the
date of filing of claim petition, he was not gainfully employed and thus petitioner claims to be
entitled to reinstatement and full salary from the date of his illegal termination till his
reengagement. It is also alleged that as per policy of the State Govt., services of petitioner deserves
to be regularized on the completion of eight years i.e. somewhere in the year 2010 as petitioner had
rendered requisite period of service in tribal area of Lahaul in District Lahaul & Spiti. Accordingly
petitioner prays for quashing impugned verbal termination order w.e.f. 23.10.2006 with further
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prayer for his reinstatement into service w.ef. same date as aforestated with all consequential
services benefits besides he has also prayed for his regularization as per the policy of the State
Govt.
4. Respondent resisted the petition, filed reply inter-alia taken preliminary objections of
maintainability, claim petition being bad on account of delay and laches. On merits admitted that
petitioner was engaged on daily wages for seasonal work of forestation, development and
conservation during year 2002 to 2006. It is alleged that as per mandays chart petitioner had served
for 114 days in the year 2002, 112 days in the year 2003, 141 days in the year 2004, 149 days in the
year 2005 and 142 days in 2006. It is claimed that after completion of seasonal work and starting of
winter season petitioner had himself left the place being resident of District Mandi and thereafter he
did not turn up for job. It is also contended that petitioner has not been retrenched from job by
respondent and therefore violation of any of provision of industrial disputes did not arise. It is also
contended that petitioner was not entitled for legal protection envisaged under Section 25-B and 25-
F of the Act. It is further contended that some persons namely Smt. Dechen Wangmo and Smt.
Jayanti Devi had been appointed on compassionate ground on account of untimely deaths of their
husbands of Sh. Karma Dawa and Sh. Daya Nand. In so far as Yaga Chand and Rey Chand are
concerned they were stated to have been engaged along-with petitioner in the year 2004. It is also
denied that any fictional break was given to petitioner. Accordingly, denying all allegations qua
violation of the provisions of the Act, the petition was sought to be dismissed.
5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition. It
is denied that he had abandoned the job of his own. It is alleged that stand taken by respondent also
gets falsified from its reply as on the one hand respondent claimed that in forest department daily
waged workmen are engaged to perform seasonal work only subject to availability of work and
funds and on the other hand, several employees were given 365 to 366 days in calendar year of
daily waged workers namely Yaga Chand and Rey Chand thus stand of respondent being self
contradictory could not be accepted instead plea set up by petitioner qua his illegal termination
deserves to be accepted.
6. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC and PW2 Shri Tek Singh and closed evidence. On the other
hand, repudiating the evidence led by petitioner, respondent had examined Shri H.L. Rana,
Divisional Forest Officer, Lahaul Forest Division, Keylong, H.P. who proved himself as RW1,
tendered Ex. RW1/B is the copy of mandays chart of petitioner, Ex. RW1/C letter dated 27.3.2012,
Ex. RW1/D copy of letter dated 26.3.2012, Exts. RW1/E and F are the mandays chart of Yagia
Chand and Rey Chand and closed evidence.
7. I have heard the ld. counsel representing petitioner and ld. Dy. D.A. for respondent,
gone through records of the case carefully.
8. From the contentions raised, following issues were framed on by my ld. Predecessor
on 22.1.2014 for determination:
1. Whether the termination of the services of the petitioner by the respondent w.e.f.
23.10.2006 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 hit by the vice of delay and laches as alleged. If so, its
effect?
...OPR.
4. Relief.
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9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : No
Issue No.3 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
10. Admittedly, petitioner had been engaged as daily waged forest worker in the month of
June, 2002 without any written appointment letter by respondent and that petitioner worked in the
Kokesar Beat, Range Office Keylong Forest Division Lahaul. It also remains the case of petitioner
that respondent department had verbally terminated his services vide order dated 23.10.2006
whereas the case of respondent, on the other hand remains that petitioner had abandoned the job of
his own who did not turn as can be noticed in manner from which he worked as reflected in
mandays chart Ex. RW1/B.
11. To appreciate to controversy in issue, it would be pertinent to refer to mandays chart
Ex. RA which showed that petitioner when initially engaged in the month of June, 2002 had
worked for 30 days and subsequent in the month of July, 2002 he worked 31 days, in August, 2002
he worked for 31 days and September, 2002 he worked for 22 days thereafter from October, 2002
till May, 2003 he did not work. As such, in the year 2003 petitioner had worked for 112 days and in
the year 2003 in the months from June, 2003 to September, 2003 he worked for 30, 31, 31, and 12
days thereafter from October, 2003 to March, 2004 he again did not work and in the months of
April, June, July, August and October, 2004 petitioner worked for 26, 30, 31, 30 and 24 days
aggregating to 141 days in the year 2004. Similarly, in the year 2005 in the months of April, June,
July, August and September, 2005 he worked for 30, 30, 28, 31, 30 aggregating to 149 days in the
year 2005 and from October, 2005 to May, 2006 he did not work. Similarly, in the year 2006 in the
months from June to October petitioner had worked for 30, 30, 30, 30 and 22 aggregating 142 days
in preceding one calendar year petitioner has certainly not worked for 240 days or say 160 days as
were required to be established who claimed to have worked in Lahaul area or District Lahaul &
Spiti. Reliance is placed on notification No.PER(AP)-C-B (2)-1/2011 dated 20.7.2011 issued by
Principal Secretary (Personnel) to govt. of H.P. Department of Personnel (AP) which revealed that
as per the policy of the government per Annexure A, daily waged/contingent paid workers who had
completed eight years of continuous service will be eligible for consideration for regularization
against available vacancy in forest department. It was specifically mentioned that eligibility for
regularization of such workers in respect of tribal areas shall be on the basis of number of minimum
requisite days i.e. in case District Lahaul and Spiti in area of Lahaul, the daily waged worker for
regularization required 160 days only and 240 days in any calendar year were required for other
areas. In the case in hand, petitioner has made futile attempt by claiming that fictional breaks had
been given as petitioner was not given muster roll for 30 days every month he worked but there is
no corresponding evidence which would show if fictional breaks were factually given to petitioner
instead he was given muster roll according to work and funds available but on the other hand the
period of 160 days is sufficient for him to claim protection having worked in tribal area of Lahaul
envisaged under Section 25-F of the Act who shall be deemed to be in continuous service if he
succeeded in establishing to have worked for 160 days in a year.
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12. Stepping into witness box as PW1 petitioner has sworn in detailed affidavit Ex. PW1/A
under Order 18 Rule 4 CP stipulating therein the manner he was engaged as daily waged forest
worker and till when he continued to work he has in unequivocal terms stated that he had neither
been given any notice envisaged under Section 25-F of the Act nor any compensation in lieu
thereof notice has been paid to him and therefore the termination of the services of petitioner by
respondent was manifestly illegal as the respondent had failed to adhere to the mandatory
provisions of the Act. It is further alleged in the affidavit that work and conduct of petitioner
remained satisfactory for the entire 160 days in a year with the respondent department and being
employed remained posted in the hard/tribal area of Lahaul, District Lahaul and Spiti as the period
of 160 days as per the notification of govt. as stated above for regularization per its policy. The
version of petitioner has been corroborated by PW2 Shri Tek Singh in the same manner as
petitioner has stipulated in his affidavit but in cross-examination this witness showed that he was
from village of petitioner but nothing in cross-examination could be elicited which would establish
that he deposed falsly in favour of petitioner. Significantly, PW2 too worked with forest department
whose services had been regularized. As such, there exists no discrepancy or any inconsistency in
testimony of PW2 and the same can be relied.
13. In so far as the plea of abandonment of work by petitioner as alleged by respondent is
concerned, there is no iota of evidence on record which would show that the respondent had made
any endevour to call petitioner on job when he absented. It is nowhere in the respondent’s evidence
that any registered letter or notice was ever sent on the address available or that any charge sheet
was raised. It has been rightly contended by ld. counsel for petitioner that abandonment is required
to be proved like any other fact which has not been established by respondent in this case. Ld.
counsel for petitioner has relied upon judgment of Hon’ble High Court of Punjab and Haryana
reported in 2014 LLR 571 titled as Ved Parkash vs. Presiding Officer, Industrial Tribunal
cum-Labour Court, Rohtak and Anr., the relevant para of the judgment is given below:—
“Abandonment-employee was a part-time Electrician. He had been taken a contract for a
Canteen in the premises of the Bank/employer. He could not attend duty regularly. He was
neither given notice nor retrenchment compensation nor had been indicted in any
departmental enquiry. He had completed continuous service for more than 240 days. His
services were terminated. He raised an industrial dispute. Industrial Tribunal held the
termination to be justified. In writ petition, the High Court observed that it is not proved on
record by cogent evidence that the employee had abandoned the employment of his own.
Hence, the termination as effected, is illegal”
14. In the above mentioned judgment services of employee was held to be illegally
terminated in view of the fact that no notice was given. At the same time while terminating the
services of petitioner, notice as required under Section 25-F of the Act or compensation in lieu
thereof notice was not given. By merely stating that petitioner had abandoned job, the plea of
respondent could not be accepted as is in his affidavit, respondent as RW-3 has maintained that due
to abandonment of the job of petitioner he was not entitled for any legal protection but as noted
above there being no reliable evidence of abandonment or that any proceedings had been initiated
by respondent to hold that petitioner had abandoned the job instead crossexamination of RW1
shows that as per the rules famed by government petitioner was claiming benefit for scheme of
regularization of employees who had rendered continuous service of eight years. If we look at
evidence of petitioner on the mandays chart it would not be erroneous to conclude that petitioner
had worked for 114 days in the year 2002, 112 days in 2003, 141 days in the year 2004, 149 days in
the year 2005 and 142 days in 2006 prior to his termination the petitioner had worked for only 142
days and thus petitioner would not be entitled to protection envisaged under Section 25-F of the
Act. In such like situation it was not incumbent upon respondent to have followed procedure
envisaged under Section 25-F of the Act.
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15. Another important aspect highlighted by petitioner claiming his retrenchment to be
illegal and unjustified is that petitioner has alleged that respondent while terminating his services
had not followed the provisions of Section 25-G of the Act which requires adopting of principle of
‘Last come First go’. Reliance has been placed on the judgment of our own Hon’ble High Court
reported in 2013 LLR 1206 titled as State of H.P. and another vs. Hardyal Singh while dealing
with Section 25-G of the Act has held that in order to claim benefit envisaged under Section 25-G
of the Act the workman is not liable to prove continuous service of 240 days. Since the plea of
management that workman had abandoned the job has not been established and that no objections
had been raised about validity of reference for adjudication, workman who had been retrenched but
had not worked for 240 days in preceding year was entitled for the protection under Section 25-G.
In the case before this court, the plea of petitioner remains that several persons junior to him were
still continuing with respondent and that he having joined earlier to them has not been retained by
the department while retrenching him.
16. It is evident from mandays chart Ex. RW1/B relating to Shesh Ram (petitioner) that he
was appointed/engaged in June, 2002 whereas Ex. RW1/F relating to Rey Chand showed that he
got employed in the year 2005. Ex. RW1/E is the mandays chart of Yagia Chand, who is shown to
have worked with respondent department till 2012 and was appointed in 2004. As such, from the
mandays chart of Yagia Chand it could not be concluded with certainty that he had joined after
May, 2004 when petitioner had joined as the Yagya Chand had worked for more than seven months
in that year. Similarly, Rey Chand is shown to have joined in the year 2005 who had worked for
365 days and was also continuing as on date. As such, the petitioner had rightly contended that
principle of ‘Last come First go’ was not followed. From the evidence of petitioner as well as
statement of RW1, it can be safely inferred that Rey Chand was junior to petitioner and was
working with the respondent department when petitioner was retrenched. Significantly, RW1 has
also admitted that petitioner was not called to join duties after his termination. It has also come in
the evidence of respondent that two persons have been engaged/appointed on the compassionate
grounds which would not eclipse claim of petitioner as certainly there is evidence on record to
show that persons junior to petitioner were still working with the department.
17. The falsity of respondent’s case further gets surfaced from its own plea as the
respondent had maintained that petitioner was engaged for seasonal forestry work whereas at the
same time respondent had engaged Yagia Chand for more than 200 days in each year from 2004 to
2012 and in some of the years he had worked for 365 days. Similarly, Rey Chand too vide its
mandays chart on record is shown to have remained employed from 2005 to 2012 exceeding 300
days in each year he worked. That being so, work of respondent/department could not be stated to
be seasonal work in any manner. As such, plea of respondent that petitioner was engaged only for
seasonal work and abandoned the job of his own respondent could not be accepted as true plea.
Accordingly, respondent is held to have violated the provisions of Section 25-G of the Act as has
been held in judgment of our own Hon’ble High Court reported in 2013 (138) FLR 1051 titled as
Paras Ram vs. Himachal Pradesh State Electricity Board Ltd., in which the Hon’ble High
Court held that the junior workmen had been retained by the respondent retrenching
petitioner/workman which is the violation of the provisions of Section 25-G of the Act.
18. Ld. Dy. D.A. for the State has also contended that petitioner is not entitled for any back
wages as he was gainfully employed after being disengaged by respondent. In his claim petition as
maintained that he has remained unemployed and not gainfully employed ever since his termination
w.e.f. 23.10.2006 but in the witness box he has specifically admitted that he was gainfully
employed and was earning from his agricultural pursuits. Since the plea of having been not
gainfully employed gets belied from his inconsistent fact deposed in cross-examination, it would be
unsafe to hold that petitioner was not gainfully employed. In the judgment of Hon’ble Apex Court
titled as Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED) & Ors.
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2013 10 SCC 324, the Hon’ble Apex Court has held that even earning from agricultural income
would be treated as gainful employment of workman and thus petitioner having remained gainfully
employed, would not be entitled to back wages more so petitioner himself admits that he was
earning his livelihood from agricultural activities. The petitioner thus shall be entitled for continuity
in service and seniority. Issue in hand is accordingly answered in affirmative.
ISSUE NO.2
19. Ld. Dy. D.A. has argued that claim petition since not maintainable. Perusal of the reply
on record shows that neither any legal or fundamental rights of petitioner had ever been infringed.
As has come in the evidence on record that the services of petitioner had been illegally terminated
vide verbal order, I see no force in the arguments of Ld. Dy. D.A. as vague plea of denial of
infringement of fundamental rights has been raised but the petitioner redress his grievance by filing
claim petition as stated above. Issue in hand is answered in negative and in favour of petitioner and
against the respondent.
ISSUE NO.3
20. Ld. Dy. D.A. for the State has also contended that claim petition is bad on account of
delay and laches. In support his contention he has referred the facts of the case that petitioner is
shown to have left the job in 2006 although the plea of delay if raised by the employer is required
to be proved as a matter of fact by showing the real prejudice and not as a merely hypothetical
defence. On the other hand, ld. Authorized Representative/counsel for the claimant/petitioner had
contended that delay does not disentitle petitioner from seeking relief he has relied upon in
Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay
of more than 10 years was held to have not come in the way of the workman whose services were
illegally terminated by holding that the provisions of Limitation Act is not applicable to industrial
dispute but however, depending upon the facts and circumstances of each case, the principle of
delay and laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1)
Himachal Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of
India, CWP No. 812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as
Divisional Manager vs. Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar
vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon’ble High Court of H.P.
that the Labour Court cannot dismiss the claim on the ground of delay and laches once the same has
been referred by the State Government and the Labour Court is bound to decide the reference
which was made by the State Government and same is required to be adjudicated upon the merits
without touching the aspect of delay and laches. The Hon’ble Apex Court in the Bombay Gas Co.
Ltd. vs. Gopal Bhiva & Ors, AIR1964 SC 752, has categorically held that as such of all those
employees, who are entitled to take the benefit of Section 33-C (2) may not always be conscious of
their rights and it may not be right to put the restriction of limitation in respect of claim which they
may have to make under the provision and in absence of any provision for limitation, it may not be
open to the Court to introduce the limitation on the ground of fairness and justice. In Ajayab Singh
vs. Sirhind Co-operative Marketing-cum-Processing Society Limited and Another, (1999) 6
SCC 82, it has been observed by the Hon’ble Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of delay. The
plea of delay if raised by the employer is required to be proved as a matter of fact by showing the
real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone”.
21. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
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prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
22. As sequel to my findings on foregoing issues, the reference/claim petition is allowed
partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall
be entitled to seniority and continuity in service from the date of his illegal termination except
back wages. He shall, however, be considered for regularization by respondent at the time when
his juniors have been regularized as per policy governing daily wagers as framed by State Govt.
and operative from time to time. The parties, however, shall bear their own costs.
23. The reference is answered accordingly.
24. A copy of this award be sent to the appropriate Govt. for publication in the official
gazette and the file after completion be consigned to the record room. Announced in the open Court
today the 29th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. 101 / 2014
Sh. Rakesh Kumar s/o Shri Pramod Chand, r/o V.P.O. Pandoga, District Una, H.P.
. .Petitioner.
Versus
The Employer/Factory Manager, M/S Reinforced Soil Technologies Pvt. Limited, Plant
Unit-I, V.P.O. Pandoga, Tehsil & District Una, H.P. (Area Office), Reinforced Soil Technologies,
1407, DLF Galleria, DLF City Phase-4, Gurgaon, Haryana (Corporate Office). . .Respondent.
30-05-2015 Present: None for the petitioner.
Sh. Pradeep Dogra, adv. vice of Sh. Rajeshwar Sapahya, adv. csl. for the respondent.
Case called several times but none has appeared on behalf of the petitioner despite
knowledge. It is 11.30 A.M. Be awaited and put up after lunch hours at 2.30 PM.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
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30-05-2015 Present: None for the petitioner.
Sh. Pradeep Dogra, adv. vice of Sh. Rajeshwar Sapahya, adv. csl. for the respondent.
Case has been called again several times but none has appeared on behalf of the petitioner.
It is 2.38 P.M. None appearance of petitioner or his ld. counsel today is indicative of the fact that
petitioner is not interested to pursue present reference and accordingly reference is disposed off for
non-prosecution.
Reference is answered in the aforesaid terms. The parties to bear their own costs.
Let copy of the Order/Award be sent to the appropriate Government for information and
further necessary action / publication. The file, after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.
Ref: No. : 323/2014
Sh. Ramesh Negi s/o Sh. Kumar Singh Negi, r/o Village Dabur, P.O. Shar, Tehsil Kot
Duwar, Distt. Porigarwal, Uttranchal.
. .Petitioner.
Versus
The Executive Director , M/S Surya Resorts Pvt. Ltd. Mcleodganj, Tehsil Dharamshala,
Distt. Kangra, H.P.
. .Respondent.
30-05-2015 Present: Sh. N.L. Kaundal, A.R. for the petitioner.
Sh. Paramjeet Bamba, Executive Director for the respondent’s company in person.
Photocopies of the documents filed by respondent.
2. Heard. Statement of Authorised Representative for the petitioner for not pressing of
reference is recorded which revealed that petitioner has received Rs. 5770/- in full and final
settlement of claim of petitioner. Statement recorded and placed on file.
3. In view of statement made by Authorised Representative for the petitioner, the
reference/claim of the petitioner is disposed of as withdrawn.
4. Ordered accordingly. The parties to bear their own costs.
5. The reference is answered in the aforesaid terms.
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6. Let copy of the Order/Award be sent to the appropriate Government for information
and further necessary action / publication.
7. The file, after completion be consigned to the records.
Announced:
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Kangra at Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref. No.
: 201/2013
Date of Institution
: 15.11.2013
Date of decision
: 30.05.2015
Shri Kuldeep Singh s/o Shri Govind, r/o Village Sanahli, P.O. Tullah, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. Suresh Kumar Sharma, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Kuldeep Singh, S/O Shri Govind,
R/O Village Sanahli, P.O. Tullah, Tehsil Joginder Nagar, District Mandi, H.P. during 2000
to 2007 by the Executive Engineer, B&R Division HPPWD, 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. Brief facts as set up in the claim petition reveal that petitioner was engaged as daily
rated beldar by respondent w.e.f. 6.4.2000 in its National Highway Division, Joginder Nagar and
later petitioner worked with the respondent in the newly created HPPWD Division in 2004 but he
was given fictional breaks from time to time from in his initial engagement till 31.8.2007. It is
alleged that petitioner was issued muster rolls for 15 days in a month, though the work was
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available for the entire month but juniors of petitioner namely Dalip Singh, Gautam Singh, Geeta
Devi, Pradeep Kumar, Kishhori Lal, Sanjay Kumar, Bhag Mal, Nihal Chand, Anil Kumar and
Chanchal. were not given such breaks and they were allowed to complete 240 days in each calendar
year and the above named juniors have now been regularized. It is alleged that the respondent has
stopped giving fictional breaks to the petitioner from 01.9.2007 and thereafter, the petitioner has
completed 240 days in each calendar year. Therefore, there has been violation of the provisions of
Sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as the
Act, for short). The petitioner thus has filed a demand notice with the labour department but matter
could not be reconciled as the petitioner has prayed for giving him the benefit of seniority,
regularization and back wages etc.
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua maintainability, petition being bad for non- joinder of necessary parties, claim
petition being bad on account of delay and laches. On merits, engagement of the petitioner from
September, 1999 is admitted. The allegation of giving fictional breaks up-to 31.8.2007 has been
specifically denied. It is alleged that the work was made available to the petitioner as per the
requirement and availability of the funds from time to time as per mandays chart annexure-RII and
R-III and that all the workers in the annexure R-III were senior to the petitioner who have since
been regularized. It is further alleged that the disengagement of the workmen on the availability of
the funds and the work was strictly in accordance with the policy of ‘last come first go’ and thus
allegation of violation of Section 25- F, 25-G and 25-H of the Industrial Disputes Act has been
specifically denied. Accordingly, relying upon the plea of reference of regularization of petitioner,
cause of action as pleaded in the claim petition filed by petitioner is denied and the petition is
sought to be dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed the evidence. On the other hand
repudiating the evidence led by petitioner, respondent had examined Shri B.S. Barwal, the then
Executive Engineer, HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A
notification dated 9th December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation
of PWD Division (B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner,
Ex. RW1/D year-wise working days of daily wage Beldar and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed by my ld. predecessor on
22.2.2014 for determination:
1. Whether the termination of the services/giving fictional breaks in service to the
petitioner by the respondent from time to time from the year 2000 to 2007 is illegal and
unjustified as alleged?
. .OPP.
2. Whether the petition is not maintainable in the present form?
. .OPR.
3.
Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?
. .OPR.
4. Relief.
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8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : No
Issue No.3 :
No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUE NO. 1
9. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. 6.4.2000 is not in dispute. It is admitted case of petitioner that he had worked
since April, 2000 but he had been deliberately given fictional breaks by respondent so that he did
not complete 240 days to get benefits of Section 25-B of the Act. The plea of respondent, on the
other hand remains that petitioner was still working but had been working intermittently as he of
his own use to not come on his duty besides he willfully absented several times from it. To
appreciate the genuineness of the plea so raised by respondent, suffice would be to state here that
bald assertion of the respondent that petitioner willfully absented from his duties is devoid of merit
as there is nothing in evidence to show that any letter or intimation was sent to petitioner for his
unauthorized absence from his duties. Rather, it is projected to be case as if petitioner came of his
own and worked left the work of his own sweet will. The plea of petitioner, on the other hand
remains that fictional breaks were given to him and that several persons junior to him namely Smt.
Geet Devi, Dalip Singh, Goutam Singh and Anil Kumar have been regularized by respondent and
these persons were actually not given fictional breaks at any point of time.
10. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 80 days, 217 days in the year 2000, 147 days in the year 2001, 211 days
in the year 2002, 186 days in the year 2003, 170 days in the year 2004, 170 days in the year 2005,
156 days in the year 2006, 232 days in the year 2007, 364 days in the year 2008, 355 days in the
year 2009, 350 days in the year 2010, 354 days in the year 2011, 291 days in the year 2012 and 270
days in the year 2013. It can be noticed that in the several years petitioner has worked for less than
240 days, whereas for other remaining years he had worked for more than 240 days. Thus, break in
service being within a period of nine years from his termination was definitely a fictional break as
in remaining years he had worked for more than 240 days. The act of the respondent in giving
fictional break is manifestly arbitrary without any basis. Seniority list of regular labourers HPPWD
(B&R) Division has also been relied upon by respondent which is Ex. RW1/D on record in which
all the persons named above are shown to have joined in the years 2000, 2002, 2003 and 2004
except at serial no. 7 who had joined earlier to petitioner as workman at serial no.8 joined in 8/1999
whereas petitioner had joined in September, 1999. Since respondent had not disputed to have
engaged petitioner in September, 1999, he ought to have been regularized having continuously
worked for about 9 years with requisite number of days required for regularization and there being
no fictional break as stated above, which would show that other persons who had joined along-with
him have been regularized but the petitioner has been deprived of his legitimate right for
regularization till now. Although respondent department ipso facto does not dislodge petitioner
from claiming his seniority and continuity in service from his initial engagement and that fictional
breaks in no manner would affect or eclipse him legitimate of regularization in service.
11. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1999 to
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2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided more than 240 days of work after
September, 2007 which means the dispute is only for the years 1999 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers who have been shown in the said seniority listwere employed after the engagement
of the petitioner. He has admitted that working of 240 days is to be established by petitioner to
claim benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has
been engaged in the year 1999 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1999 to 2007 but he could not prove
so as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from his duty any notice was issued for unauthorized absence and the version of RW1
that petitioner came and go of his own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
his absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well. Although, petitioner being in employment at the
time of passing of having fictional breaks as stated above is duly established yet he cannot be
deprived of his legitimate right to seek seniority as well as continuity in service form his date of
joining along-with other persons working with him. Thus, petitioner could not have been
discriminated arbitrarily. In view of aforesaid discussion, it is held that time to time termination of
the services of the petitioner and giving fictional breaks in service by the respondent during 1999 to
2007 was certainly illegal and unjustified in contravention of provisions of Section 25-F, 25-G &
25-H of the Act but as the petitioner is still in employment with the respondent, he is to be given
benefit of seniority and continuity in service except back wages in the peculiar circumstances of
the case. Issue in question is decided in part in favour of the petitioner and against the respondent.
ISSUE NO. 2
12. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department ha contended that present claim
petition is not maintainable as the petitioner had abandoned the job of his own and did not join his
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO. 3
13. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
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on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
14. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
15. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement, the
breaks given by the respondent being fictional in nature shall have no effect on the seniority and
continuity of service of the petitioner and his seniority shall be reckoned from his initial date of
engagement. Accordingly, claim of petition is hereby allowed and reference is accordingly
answered in favour of petitioner who shall thus be deemed to be in continuous service of
respondent with all consequential benefits except back wages. He shall, however, be considered
for regularization by respondent at the time when his juniors have been regularized as per policy
governing daily wagers as framed by State Govt. and operative from time to time. The parties,
however, shall bear their own costs.
16. The reference is answered in the aforesaid terms.
17. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
18. File after due completion be consigned to the Record Room.
Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
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IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 274/2014
Date of Institution
: 09.09.2014
Date of decision
: 30.05.2015
Smt. Lata Devi w/o Shri Kali Dass, r/o Village Rakkar (Galu), P.O. Dul, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Lata Devi, W/O Shri Shyam
Singh, R/O Village Rakkar (Galu), P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P.
during 02-2001 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 of back wages,
seniority, past service benefits and compensation the above worker is entitled to from the
above employer?”
2. After the receipt of the abovestated reference, a corrigendum dated 25th February, 2015
was received from the appropriate government which reads as under:
“In partial modification of this Department’s notification of even number dated 20-08-2014,
“Smt. Lata Devi W/O Shri Shyam Singh” be substituted by “Smt. Lata Devi W/O Shri Kali
Dass” which was inadvertently recorded in the said notification”.
3. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis w.e.f. February, 2001 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in her name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, her services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
artificial breaks from the year 2001 to 30.09.2007. Not only this, the persons who were working
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with her (petitioner) or joined the service after her were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to her contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2011 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
February, 2001 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with her verbal requests from time to time, she was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per her convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
5. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
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December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during March, 1999 to 31.8.2007 is/was
illegal and unjustified as alleged?
. .OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
. .OPP.
3. Whether the claim petition is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
. .OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent in the year 2001 is not in dispute. It is the admitted case of petitioner that petitioner had
worked since 2001 but she had been deliberately given fictional breaks by respondent so that
petitioner did not complete 240 days to get benefits of Section 25-B of the Act. The plea of
respondent, on the other hand remains that petitioner was still working but had been working
intermittently as she of her own used to not come on her duty besides she willfully absented several
times from her duty. To appreciate the genuineness of the plea so raised by respondent, suffice
would be to state here that bald assertion of the respondent that petitioner willfully absented from
her duties is devoid of merit as there is nothing corresponding in evidence to show that any letter or
intimation was sent to petitioner for her unauthorized absence from her duties. Rather, it is
projected to be case as if petitioner came of her own for work and left the work of her own sweet
will. The plea of petitioner, on the other hand remains that fictional breaks were given to her and
that several persons junior to her namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar,
Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 2001
petitioner had worked for 154 days, 149 days in the year 2002, 172 days in the year 2003, 161 days
in the year 2004, 148 days in the year 2005, 153.5 days in the year 2006, 166 days in the year 2007,
339 days in the year 2008, 319 days in the year 2009, 365 days in the year 2010, 348 days in the
year 2011, 345 days in the year 2012, 332 days in the year 2013, and 198 days in the year 2014. It
can be noticed that till 2007 petitioner has worked for less than 240 days whereas for other
remaining years she had worked for more than 240 days. It may be pertinent to state here that vide
letter dated 14.9.2007 Ex. PX direction has been given by government to provide muster roll to all
labourers who have been engaged for 15/20 days or 30 days be provided muster roll for full month
in certain situation but this instruction appears to be have been completely ignored by respondent
department as claimant petitioner was engaged in 2001 much prior to year 2006 and had not
completed 10 years who was to be issued muster roll for full month in relaxation of policy as
special case. Thus, break in service being within a period of nine years from her termination was
definitely a fictional break as in remaining years, she had worked for more than 240 days. The act
of the respondent in giving fictional break is manifestly arbitrary without any basis. Seniority list of
regular labourers HPPWD (B&R) Division has also been relied upon by respondent which is Ex.
RW1/D on record in which all the persons named above are shown to have joined in the years
2000, 2002, 2003 and 2004 except at serial nos. 1 to 3 who had joined earlier to petitioner as
workman at serial no.4 joined in the year 1999 whereas petitioner had joined in the year 2001.
Since respondent had not disputed to have engaged petitioner in February, 2001 she ought to have
been regularized having continuously worked for about 9 years with requisite number of days
required for regularization and there being no fictional break as stated above, which would show
that other persons who had joined along-with her have been regularized but the petitioner has been
deprived of her legitimate right for regularization till now. Although respondent department ipso
facto does not dislodge petitioner from claiming her seniority and continuity in service from her
initial engagement and thus fictional breaks in no manner would affect or eclipse her legitimate
right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that she had been engaged and disengaged between 2001
to 2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, she has admitted that she has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 2001 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers shown in the said seniority list were employed after the engagement of the
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petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 2001 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 2001 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from her duty any notice was issued for unauthorized absence and the version of RW1
that she came and go of her own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
her absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 2001 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet she cannot be deprived of her legitimate right to seek
seniority as well as continuity in service form her date of joining along-with other persons working
with her besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 2001 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, she is to be given benefit of seniority
and continuity in service except back wages particularly when she has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of her own and did not join her
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that she was working with respondent although she
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
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Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of her initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and her seniority shall be reckoned from her
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. She shall,
however, be considered for regularization by respondent at the time when her juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
21. File after due completion be consigned to the Record Room.
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Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 275/2014
Date of Institution : 09.09.2014
Date of decision : 30.05.2015
Smt. Sumna Devi w/o Shri Jagdish Chand, r/o Village Galu, P.O. Dul, Tehsil Joginder
Nagar, District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Sumna Devi, W/O Shri Jagdish
Chand, R/O Village Galu, P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P. during 05-
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 of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis in the year 1999 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in her name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, her services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
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artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with her (petitioner) or joined the service after her were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to her contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
January, 1999 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with her verbal requests from time to time, she was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per her convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
5. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
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HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during May, 1999 to 31.8.2007 is/was illegal
and unjustified as alleged?
. .OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
. .OPP.
3. Whether the claim petition is not maintainable in the present form?
. .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
. .OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
. .OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent in the year 1999 is not in dispute. It is the admitted case of petitioner that petitioner had
worked since 1999 but she had been deliberately given fictional breaks by respondent so that
petitioner did not complete 240 days to get benefits of Section 25-B of the Act. The plea of
respondent, on the other hand remains that petitioner was still working but had been working
intermittently as she of her own used to not come on her duty besides she willfully absented several
times from her duty. To appreciate the genuineness of the plea so raised by respondent, suffice
would be to state here that bald assertion of the respondent that petitioner willfully absented from
her duties is devoid of merit as there is nothing corresponding in evidence to show that any letter or
intimation was sent to petitioner for her unauthorized absence from her duties. Rather, it is
projected to be case as if petitioner came of her own for work and left the work of her own sweet
will. The plea of petitioner, on the other hand remains that fictional breaks were given to her and
that several persons junior to her namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar,
Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 171 days, 174 days in the year 2000, 172 days in the year 2001, 169 days
in the year 2002, 173 days in the year 2003, 169 days in the year 2004, 167 days in the year 2005,
158 days in the year 2006, 226 days in the year 2007, 358 days in the year 2008, 352 days in the
year 2009, 313 days in the year 2010, 357 days in the year 2011, 348 days in the year 2012, 359
days in the year 2013 and 205 days in the year 2014. It can be noticed that till 2007 petitioner has
worked for less than 240 days whereas for other remaining years she had worked for more than 240
days. It may be pertinent to state here that vide letter dated 14.9.2007 Ex. PX direction has been
given by government to provide muster roll to all labourers who have been engaged for 15/20 days
or 30 days be provided muster roll for full month in certain situation but her instruction appears to
be have been completely ignored by respondent department as claimant petitioner was engaged in
1999 much prior to year 2006 and had not completed 10 years who was to be issued muster roll for
full month in relaxation of policy as special case. Thus, break in service being within a period of
nine years from her termination was definitely a fictional break as in remaining years she had
worked for more than 240 days. The act of the respondent in giving fictional break is manifestly
arbitrary without any basis. Seniority list of regular labourers HPPWD (B&R) Division has also
been relied upon by respondent which is Ex. RW1/D on record in which all the persons named
above are shown to have joined in the years 2000, 2002, 2003 and 2004 except at serial nos. 1 to 3
who had joined earlier to petitioner as workman at serial no.4 joined in the year 1999 whereas
petitioner had joined in December, 1998. Since respondent had not disputed to have engaged
petitioner in December, 1998, she ought to have been regularized having continuously worked for
about 9 years with requisite number of days required for regularization and there being no fictional
break as stated above, which would show that other persons who had joined along-with her have
been regularized but the petitioner has been deprived of her legitimate right for regularization till
now. Although respondent department ipso facto does not dislodge petitioner from claiming her
seniority and continuity in service from her initial engagement and thus fictional breaks in no
manner would affect or eclipse her legitimate right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that she had been engaged and disengaged between 1999
to 2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, she has admitted that she has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 1999 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers shown in the said seniority list were employed after the engagement of the
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petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 1999 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1999 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from her duty any notice was issued for unauthorized absence and the version of RW1
that she came and go of her own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
her absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet she cannot be deprived of her legitimate right to seek
seniority as well as continuity in service form her date of joining along-with other persons working
with her besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 1999 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, she is to be given benefit of seniority
and continuity in service except back wages particularly when she has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of her own and did not join her
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that she was working with respondent although she
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
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Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of delay. The
plea of delay if raised by the employer is required to be proved as a matter of fact by showing the
real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of her initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and her seniority shall be reckoned from her
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. She shall,
however, be considered for regularization by respondent at the time when her juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
21. File after due completion be consigned to the Record Room.
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Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 276/2014
Date of Institution : 09.09.2014
Date of decision
: 30.05.2015
Shri Prem Singh s/o Shri Banku Ram, r/o Village Banar, P.O. Dul, Tehsil Joginder Nagar,
District Mandi, H.P.
. .Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
. .Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner : Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Prem Singh, S/O Shri Banku
Ram, R/O Village Banar, P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P. during 12-
1998 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 of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis w.e.f. December, 1998 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in his name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, his services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
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artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with him (petitioner) or joined the service after him were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to him contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
December, 1998 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with his verbal requests from time to time, he was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per his convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
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HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during December, 1998 to 31.8.2007 is/was
illegal and unjustified as alleged?
. .OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to? . .OPP.
3. Whether the claim petition is not maintainable in the present form? . .OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect? . .OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
. .OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief :
Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. December, 1998 is not in dispute. It is the admitted case of petitioner that
petitioner had worked since December, 1998 but he had been deliberately given fictional breaks by
respondent so that petitioner did not complete 240 days to get benefits of Section 25-B of the Act.
The plea of respondent, on the other hand remains that petitioner was still working but had been
working intermittently as he of his own used to not come on his duty besides he willfully absented
several times from his duty. To appreciate the genuineness of the plea so raised by respondent,
suffice would be to state here that bald assertion of the respondent that petitioner willfully absented
from his duties is devoid of merit as there is nothing corresponding in evidence to show that any
letter or intimation was sent to petitioner for his unauthorized absence from his duties. Rather, it is
projected to be case as if petitioner came of his own for work and left the work of his own sweet
will. The plea of petitioner, on the other hand remains that fictional breaks were given to him and
that several persons junior to him namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar,
Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1998
petitioner had worked for 6 days, 194 days in the year 1999, 178 days in the year 2000, 177 days in
the year 2001, 155 days in the year 2002, 179 days in the year 2003, 164 days in the year 2004, 167
days in the year 2005, 167 days in the year 2006, 207 days in the year 2007, 362 days in the year
2008, 361 days in the year 2009, 363 days in the year 2010, 361 days in the year 2011, 354 days in
the year 2012, 365 days in the year 2013 and 210 days in the year 2014. It can be noticed that till
2007 petitioner has worked for less than 240 days whereas for other remaining years he had worked
for more than 240 days. It may be pertinent to state here that vide letter dated 14.9.2007 Ex. PX
direction has been given by government to provide muster roll to all labourers who have been
engaged for 15/20 days or 30 days be provided muster roll for full month in certain situation but his
instruction appears to be have been completely ignored by respondent department as claimant
petitioner was engaged in 1998 much prior to year 2006 and had not completed 10 years who was
to be issued muster roll for full month in relaxation of policy as special case. Thus, break in service
being within a period of nine years from his termination was definitely a fictional break as in
remaining years he had worked for more than 240 days. The act of the respondent in giving
fictional break is manifestly arbitrary without any basis. Seniority list of regular labourers HPPWD
(B&R) Division has also been relied upon by respondent which is Ex. RW1/D on record in which
all the persons named above are shown to have joined in the years 2000, 2002, 2003 and 2004
except at serial nos. 1 to 3 who had joined earlier to petitioner as workman at serial no.4 joined in
the year 1999 whereas petitioner had joined in December, 1998. Since respondent had not disputed
to have engaged petitioner in December, 1998, he ought to have been regularized having
continuously worked for about 9 years with requisite number of days required for regularization
and there being no fictional break as stated above, which would show that other persons who had
joined along-with him have been regularized but the petitioner has been deprived of his legitimate
right for regularization till now. Although respondent department ipso facto does not dislodge
petitioner from claiming his seniority and continuity in service from his initial engagement and thus
fictional breaks in no manner would affect or eclipse him legitimate right of regularization in
service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1998 to
2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 1998 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
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all the labourers shown in the said seniority list were employed after the engagement of the
petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 1998 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1998 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from his duty any notice was issued for unauthorized absence and the version of RW1
that he came and go of his own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
his absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1998 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet he cannot be deprived of his legitimate right to seek
seniority as well as continuity in service form his date of joining along-with other persons working
with him besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 1998 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, he is to be given benefit of seniority
and continuity in service except back wages particularly when he has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of his own and did not join his
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that he was working with respondent although he
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
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by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and his seniority shall be reckoned from his
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. He shall,
however, be considered for regularization by respondent at the time when his juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
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21. File after due completion be consigned to the Record Room.
Announced in the open Court today this 30th day of May, 2015.
By order,
K .K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_____________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 277/2014
Date of Institution
: 09.09.2014
Date of decision
: 30.05.2015
Shri Nag Chand s/o Shri Halku Ram, r/o Village Maherna, P.O. Dul, Tehsil Joginder Nagar,
District Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Nag Chand, S/O Shri Halku Ram,
R/O Village Maherna, P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P. during 12-
1998 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 of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis w.e.f. December, 1998 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in his name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
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month and that fictional breaks for 10-15 days in each month were continued to be given by the
respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, his services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with him (petitioner) or joined the service after him were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to him contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
December, 1998 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with his verbal requests from time to time, he was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per his convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
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5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during December, 1998 to 31.8.2007 is/was
illegal and unjustified as alleged?
…OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
...OPP.
3. Whether the claim petition is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
…OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. December, 1998 is not in dispute. It is the admitted case of petitioner that
petitioner had worked since December, 1998 but he had been deliberately given fictional breaks by
respondent so that petitioner did not complete 240 days to get benefits of Section 25-B of the Act.
The plea of respondent, on the other hand remains that petitioner was still working but had been
working intermittently as he of his own used to not come on his duty besides he willfully absented
several times from his duty. To appreciate the genuineness of the plea so raised by respondent,
suffice would be to state here that bald assertion of the respondent that petitioner willfully absented
from his duties is devoid of merit as there is nothing corresponding in evidence to show that any
letter or intimation was sent to petitioner for his unauthorized absence from his duties. Rather, it is
projected to be case as if petitioner came of his own for work and left the work of his own sweet
will. The plea of petitioner, on the other hand remains that fictional breaks were given to him and
that several persons junior to him namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar,
Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1998
petitioner had worked for 7 days, 194 days in the year 1999, 170 days in the year 2000, 175 days in
the year 2001, 160 days in the year 2002, 151 days in the year 2004, 167 days in the year 2005, 164
days in the year 2006, 191 days in the year 2007, 359 days in the year 2008, 363 days in the year
2009, 365 days in the year 2010, 363 days in the year 2011, 348 days in the year 2012, 365 days in
the year 2013 and 210 days in the year 2014. It can be noticed that till 2007 petitioner has worked
for less than 240 days whereas for other remaining years he had worked for more than 240 days. It
may be pertinent to state here that vide letter dated 14.9.2007 Ex. PX direction has been given by
government to provide muster roll to all labourers who have been engaged for 15/20 days or 30
days be provided muster roll for full month in certain situation but his instruction appears to be
have been completely ignored by respondent department as claimant petitioner was engaged in
1998 much prior to year 2006 and had not completed 10 years who was to be issued muster roll for
full month in relaxation of policy as special case. Thus, break in service being within a period of
nine years from his termination was definitely a fictional break as in remaining years he had
worked for more than 240 days. The act of the respondent in giving fictional break is manifestly
arbitrary without any basis. Seniority list of regular labourers HPPWD (B&R) Division has also
been relied upon by respondent which is Ex. RW1/D on record in which all the persons named
above are shown to have joined in the years 2000, 2002, 2003 and 2004 except at serial nos. 1 to 3
who had joined earlier to petitioner as workman at serial no.4 joined in the year 1999 whereas
petitioner had joined in December, 1998. Since respondent had not disputed to have engaged
petitioner in December, 1998, he ought to have been regularized having continuously worked for
about 9 years with requisite number of days required for regularization and there being no fictional
break as stated above, which would show that other persons who had joined alongwith him have
been regularized but the petitioner has been deprived of his legitimate right for regularization till
now. Although respondent department ipso facto does not dislodge petitioner from claiming his
seniority and continuity in service from his initial engagement and thus fictional breaks in no
manner would affect or eclipse him legitimate right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1998 to
2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 1998 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers shown in the said seniority list were employed after the engagement of the
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petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 1999 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1998 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from his duty any notice was issued for unauthorized absence and the version of RW1
that he came and go of his own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
his absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1998 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet he cannot be deprived of his legitimate right to seek
seniority as well as continuity in service form his date of joining along-with other persons working
with him besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 1998 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, he is to be given benefit of seniority
and continuity in service except back wages particularly when he has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of his own and did not join his
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that he was working with respondent although he
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
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Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and his seniority shall be reckoned from his
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. He shall,
however, be considered for regularization by respondent at the time when his juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
21. File after due completion be consigned to the Record Room.
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Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref .No.
: 278/2014
Date of Institution : 09.09.2014
Date of decision
: 30.05.2015
Smt. Santoshi Devi w/o Shri Mehar Singh, r/o Village Khohli (Galu), P.O. Dul, Tehsil
Joginder Nagar, District Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Smt. Santoshi Devi, w/o Shri Mehar
Singh, R/O Village Khohli (Galu), P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P.
during 11-1999 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 of back wages,
seniority, past service benefits and compensation the above worker is entitled to from the
above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis w.e.f. November, 1999 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in her name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
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respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, her services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with her (petitioner) or joined the service after her were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to her contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
February, 1999 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with her verbal requests from time to time, she was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per her convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated her stand as maintained in the claim petition.
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5. To prove her case, petitioner had examined herself as PW1 tendered/proved her
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during November, 1999 to 31.8.2007 is/was
illegal and unjustified as alleged?
... OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
…OPP.
3. Whether the claim petition is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
…OPR.
6.
Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by
the respondent w.e.f. November, 1999 is not in dispute. It is the admitted case of petitioner that
petitioner had worked since January, 2001 but she had been deliberately given fictional breaks by
respondent so that petitioner did not complete 240 days to get benefits of Section 25-B of the Act.
The plea of respondent, on the other hand remains that petitioner was still working but had been
working intermittently as she of her own used to not come on her duty besides she willfully
absented several times from her duty. To appreciate the genuineness of the plea so raised by
respondent, suffice would be to state here that bald assertion of the respondent that petitioner
willfully absented from her duties is devoid of merit as there is nothing corresponding in evidence
to show that any letter or intimation was sent to petitioner for her unauthorized absence from her
duties. Rather, it is projected to be case as if petitioner came of her own for work and left the work
of her own sweet will. The plea of petitioner, on the other hand remains that fictional breaks were
given to her and that several persons junior to her namely Smt. Guddi Devi, Sh. Prithi Chand, Sh.
Ravinder Kumar, Sh. Dalip Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have
been regularized by respondent and these persons were actually not given fictional breaks at any
point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 34 days, 166 days in the year 2001, 159 days in the year 2002, 173 days
in the year 2003, 166 days in the year 2004, 157 days in the year 2005, 133 days in the year 2006,
198 days in the year 2007, 355 days in the year 2008, 359 days in the year 2009, 333 days in the
year 2010, 358 days in the year 2011, 325 days in the year 2012 363 days in the year 2013 and 208
days in the year 2014. It can be noticed that till 2007 petitioner has worked for less than 240 days
whereas for other remaining years she had worked for more than 240 days. It may be pertinent to
state here that vide letter dated 14.9.2007 Ex. PX direction has been given by government to
provide muster roll to all labourers who have been engaged for 15/20 days or 30 days be provided
muster roll for full month in certain situation but this instruction appears to be have been
completely ignored by respondent department as claimant petitioner was engaged in 2001 much
prior to year 2006 and had not completed 10 years who was to be issued muster roll for full month
in relaxation of policy as special case. Thus, break in service being within a period of nine years
from her termination was definitely a fictional break as in remaining years she had worked for more
than 240 days. The act of the respondent in giving fictional break is manifestly arbitrary without
any basis. Seniority list of regular labourers HPPWD (B&R) Division has also been relied upon by
respondent which is Ex. RW1/D on record in which all the persons named above are shown to have
joined in the years 2002 and 2003 except at serial nos. 1 to 5 & 10 who had joined earlier to
petitioner as workman at serial nos. 6 & 7 joined in the year 2001 whereas petitioner had joined in
February, 2001. Since respondent had not disputed to have engaged petitioner in February, 2001,
she ought to have been regularized having continuously worked for about 9 years with requisite
number of days required for regularization and there being no fictional break as stated above, which
would show that other persons who had joined along-with her have been regularized but the
petitioner has been deprived of her legitimate right for regularization till now. Although respondent
department ipso facto does not dislodge petitioner from claiming her seniority and continuity in
service from her initial engagement and thus fictional breaks in no manner would affect or eclipse
her legitimate right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that she had been engaged and disengaged between 2001
to 2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, she has admitted that she has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 2001 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
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all the labourers shown in the said seniority list were employed after the engagement of the
petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 2001 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 2001 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from her duty any notice was issued for unauthorized absence and the version of RW1
that she came and go of her own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
her absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet she cannot be deprived of her legitimate right to seek
seniority as well as continuity in service form her date of joining along-with other persons working
with her besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 2001 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, she is to be given benefit of seniority
and continuity in service except back wages particularly when she has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of her own and did not join her
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that she was working with respondent although she
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO. 4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
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by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of her initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and her seniority shall be reckoned from her
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. She shall,
however, be considered for regularization by respondent at the time when her juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
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21. File after due completion be consigned to the Record Room.
Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
__________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 279/2014
Date of Institution
: 09.09.2014
Date of decision
: 30.05.2015
Shri Swaru Ram s/o Shri Gorkhu Ram, r/o Village Patt, P.O. Dul, Tehsil Joginder Nagar,
District Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
….Responden.t
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Swaru Ram, S/O Shri Gorkhu
Ram, R/O Village Patt, P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P. during 04-
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 of back wages, seniority, past service
benefits and compensation the above worker is entitled to from the above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis w.e.f. April, 1999 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in his name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
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respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, his services were
continuously engaged by the respondent. It is alleged that the respondent had given petitioner
artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with him (petitioner) or joined the service after him were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to him contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
January, 1999 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with his verbal requests from time to time, he was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per his convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
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5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during April, 1999 to 31.8.2007 is/was
illegal and unjustified as alleged?
…OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
…OPP.
3. Whether the claim petition is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
…OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. April, 1999 is not in dispute. It is the admitted case of petitioner that petitioner
had worked since April, 1999 but he had been deliberately given fictional breaks by respondent so
that petitioner did not complete 240 days to get benefits of Section 25-B of the Act. The plea of
respondent, on the other hand remains that petitioner was still working but had been working
intermittently as he of his own used to not come on his duty besides he willfully absented several
times from his duty. To appreciate the genuineness of the plea so raised by respondent, suffice
would be to state here that bald assertion of the respondent that petitioner willfully absented from
his duties is devoid of merit as there is nothing corresponding in evidence to show that any letter or
intimation was sent to petitioner for his unauthorized absence from his duties. Rather, it is projected
to be case as if petitioner came of his own for work and left the work of his own sweet will. The
plea of petitioner, on the other hand remains that fictional breaks were given to him and that several
persons junior to him namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar, Sh. Dalip
Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 186 days, 180 days in the year 2000, 177 days in the year 2001, 165 days
in the year 2002, 151 days in the year 2003, 165.5 days in the year 2004, 164 days in the year 2005,
165 days in the year 2006, 224 days in the year 2007, 362 days in the year 2008, 357 days in the
year 2009, 333 days in the year 2010, 363 days in the year 2011, 346 days in the year 2012, 354
days in the year 2013 and 210 days in the year 2014. It can be noticed that till 2007 petitioner has
worked for less than 240 days whereas for other remaining years he had worked for more than 240
days. It may be pertinent to state here that vide letter dated 14.9.2007 Ex. PX direction has been
given by government to provide muster roll to all labourers who have been engaged for 15/20 days
or 30 days be provided muster roll for full month in certain situation but his instruction appears to
be have been completely ignored by respondent department as claimant petitioner was engaged in
1999 much prior to year 2006 and had not completed 10 years who was to be issued muster roll for
full month in relaxation of policy as special case. Thus, break in service being within a period of
nine years from his termination was definitely a fictional break as in remaining years he had
worked for more than 240 days. The act of the respondent in giving fictional break is manifestly
arbitrary without any basis. Seniority list of regular labourers HPPWD (B&R) Division has also
been relied upon by respondent which is Ex. RW1/D on record in which all the persons named
above are shown to have joined in the years 2000, 2002, 2003 and 2004 except at serial nos. 1 to 3
who had joined earlier to petitioner as workman at serial no.4 joined in the year 1999 whereas
petitioner had joined in December, 1998. Since respondent had not disputed to have engaged
petitioner in December, 1998, he ought to have been regularized having continuously worked for
about 9 years with requisite number of days required for regularization and there being no fictional
break as stated above, which would show that other persons who had joined alongwith him have
been regularized but the petitioner has been deprived of his legitimate right for regularization till
now. Although respondent department ipso facto does not dislodge petitioner from claiming his
seniority and continuity in service from his initial engagement and thus fictional breaks in no
manner would affect or eclipse him legitimate right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1999 to
2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 1999 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers shown in the said seniority list were employed after the engagement of the
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petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 1999 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1999 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from his duty any notice was issued for unauthorized absence and the version of RW1
that he came and go of his own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
his absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet he cannot be deprived of his legitimate right to seek
seniority as well as continuity in service form his date of joining along-with other persons working
with him besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 1999 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, he is to be given benefit of seniority
and continuity in service except back wages particularly when he has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of his own and did not join his
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO.5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that he was working with respondent although he
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO.4
16. It is settled preposition of law that in case a dispute is referred to for determination, the
Court will have to return a finding on merits and the delay in raising the dispute may be considered
by the Court at the time of granting the final relief, as has been held by our own Hon’ble High
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Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another vs.
Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have not
come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of
delay. The plea of delay if raised by the employer is required to be proved as a matter of
fact by showing the real prejudice and not as a merely hypothetical defence. No reference to
the Labour Court can be generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and his seniority shall be reckoned from his
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. He shall,
however, be considered for regularization by respondent at the time when his juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms. 20. A copy of this Award be sent to
the appropriate Government for publication in the official gazette.
21. File after due completion be consigned to the Record Room.
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Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
_________
IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-
INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)
Ref No.
: 280/2014
Date of Institution : 09.09.2014
Date of decision
: 30.05.2015
Shri Joginder s/o Shri Saran, r/o Village Patt, P.O. Dul, Tehsil Joginder Nagar, District
Mandi, H.P.
…Petitioner.
Versus
The Executive Engineer, B&R Division, H.P.P.W.D. Joginder Nagar, Distt. Mandi, H.P.
….Respondent.
Reference under section 10 (1) of the Industrial Disputes Act, 1947.
For the Petitioner
: Sh. N.L. Kaundal, AR
: Sh. Vijay Kaundal, Adv.
For the Respondent
: Sh. Sanjeev Singh Rana, Dy. D.A.
AWARD
1. The following reference has been received from the appropriate Government for
adjudication:
“Whether time to time termination of the services of Shri Joginder, S/O Shri Saran, R/O
Village Patt, P.O. Dul, Tehsil Joginder Nagar, District Mandi, H.P. during 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 of back wages, seniority, past service benefits and
compensation the above worker is entitled to from the above employer?”
2. Brief facts as set up in the claim petition reveal that the services of petitioner were
engaged by the B&R Department as a daily wager on muster roll basis in the year 1999 who
worked under the Assistant Engineer, HPPWD Sub Division, Joginder Nagar but no appointment
order/letter was issued in his name by the respondent. Averments made in claim petition further
stipulates that the latter used to engage petitioner’s for 15 to 20 days every month instead of the full
month and that fictional breaks for 10-15 days in each month were continued to be given by the
respondent till 30.09.2007. Thereafter, as per the instructions issued by the Principal Secretary
(PW) to the Government of Himachal Pradesh per letter dated 14.9.2007, his services were
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continuously engaged by the respondent. It is alleged that the respondent had given petitioner
artificial breaks from the year 1999 to 30.09.2007. Not only this, the persons who were working
with him (petitioner) or joined the service after him were not given any break by the respondent
deliberately. At the time while giving artificial/fictional breaks, the principle of ‘last come first go’
was also not followed by the respondent and the persons junior to petitioner namely Shri Rajinder
Singh and Sh. Sumer Singh and others worked with the respondent/department without any break
and that the period of artificial breaks is required to be counted as continuous service for the
purpose of the regularization of petitioner’s services. It is alleged that the persons junior to
petitioner have been regularized by the respondent earlier to him contrary to the policy of the State.
A similar case titled as Suresh Kumar vs. The Executive Engineer, HPPWD, Division Baijnath
bearing reference No.23/2010 has already been decided in favour of the workman by this Court per
Award dated 28.11.2011 and thus petitioner having completed eight years of continuous service on
31.12.2006 and 10 years of continuous service on 31.12.2008 was liable to be regularized as work
charged beldar as per the policy framed/approved in Mool Raj Upadhaya’s case i.e. w.e.f. 1st
January, 2009 in the pay scale of Rs.4910-10680/- with all other perks and allowances. It is also
contended that petitioner is still working with the respondent/department. The act and conduct of
the respondent is also alleged to be unfair labour practice which also violates Sections 25-F, 25-G
and 25-H of the Industrial Disputes Act, 1947 (14 of 1947, ‘the Act’ for short).
3. Respondent contested petition, filed separate reply inter-alia taken preliminary
objections qua non-maintainability as no legal or fundamental right of the petitioner has been
infringed, the petition being hit by the vice of delay and laches and bad for not impleading the State
of Himachal Pradesh and the Executive Engineer, National Highway Division, HPPWD, Joginder
Nagar as parties to the petition. On merits, engagement of the services of the petitioner from
March, 1999 is admitted. However, it has been pleaded that the petitioner was employed by the
Executive Engineer, National Highway Division, HPPWD, Joginder Nagar and that respondent’s
office was created in the month of January, 2004 vide notification dated 9th December, 2003. The
office started functioning w.e.f. 2nd January, 2004 and after the creation of his (respondent’s)
office, the petitioner and some other workmen were transferred to the newly created Division from
the National Highway Division, Joginder Nagar. The claim of the petitioner prior to 01.1.2004
pertains to the office of the Executive Engineer, National Highway Division, Joginder Nagar, who
is not a party to the case. It has been emphatically denied that if fictional breaks were given to the
petitioner at any point of time rather the services of the petitioner were engaged as per the
availability of the work and funds. As and when the services of the petitioner were engaged in
accordance with his verbal requests from time to time, he was duly made aware regarding the
availability of the work besides maintained that no continuous work for the entire month was
provided to the petitioner who used to report for duty intermittently as per his convenience. The
workmen whose names have been disclosed by the petitioner, worked in continuity and that their
services have been regularized as per the seniority and policy of the State. The policy framed in
Mool Raj Upadhaya’s case is stated to be not applicable to the present case as in that case, one time
benefit was given to the employees who had either completed 10 years of continuous service with
240 days in each calendar year as on 31.12.1993 or the employees who had rendered one or more
year of service but had not completed 10 years of service up-to 31.12.1993. It is further asserted
that the services of the petitioner would be regularized as per the policy of the State besides denied
to have indulged in any unfair labour practice and maintained that no provision of the Act has been
violated. Accordingly, cause of action as pleaded in the claim petition filed by petitioner is denied
and the petition is sought to be dismissed.
4. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.
5. To prove his case, petitioner had examined himself as PW1 tendered/proved his
affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the
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evidence led by petitioner, respondent had examined Shri B.S. Barwal the then Executive Engineer,
HPPWD (B&R) Division Joginder Nagar as RW1 tendered Ex. RW1/A notification dated 9th
December, 2003, Ex. RW1/B copy of letter dated 2.1.2004 regarding creation of PWD Division
(B&R) Joginder Nagar in the year 2004, Ex. RW1/C mandays chart of petitioner, Ex. RW1/D year-
wise working days of daily wage Beldar, Ex. PX copy of letter dated 14th September, 2007 of Pr.
Secretary (PW) to The Engineer-in-Chief and others regarding providing of muster roll for
complete month to the workers in PWD without break instead of 15/18/20 or 30 days with
intermittent breaks and closed the evidence.
6. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.
D.A. for respondent, gone through records of the case carefully.
7. From the contentions raised, following issues were framed on 16.12.2014 for
determination:
1. Whether time to time termination of the services of the petitioner/giving breaks in
service to the petitioner by the respondent during March, 1999 to 31.8.2007 is/was
illegal and unjustified as alleged?
…OPP.
2. If issue No.1 is answered in negative, to what amount of back wages, seniority, past
service benefits and compensation, the petitioner is entitled to?
…OPP.
3. Whether the claim petition is not maintainable in the present form?
…OPR.
4. Whether the claim petition is bad on account of delay and laches as alleged. If so, its
effect?
…OPR.
5. Whether the claim petition is bad for non-joinder of the necessary parties as alleged?
…OPR.
6. Relief.
8. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my
findings on the aforesaid issues are as follows:
Issue No.1 : Yes
Issue No.2 : Discussed
Issue No.3 : No
Issue No.4 : No
Issue No. 5 : No
Relief : Petition is allowed per operative part of the Award.
REASONS FOR FINDINGS
ISSUES NO. 1 AND 2
9. Both these issues have been taken up together for discussion being interconnected
which can be disposed of simultaneously without repetition of evidence.
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10. Factum of petitioner having been appointed as daily waged beldar on muster roll by the
respondent w.e.f. March, 1999 is not in dispute. It is the admitted case of petitioner that petitioner
had worked since March, 1999 but he had been deliberately given fictional breaks by respondent so
that petitioner did not complete 240 days to get benefits of Section 25-B of the Act. The plea of
respondent, on the other hand remains that petitioner was still working but had been working
intermittently as he of his own used to not come on his duty besides he willfully absented several
times from his duty. To appreciate the genuineness of the plea so raised by respondent, suffice
would be to state here that bald assertion of the respondent that petitioner willfully absented from
his duties is devoid of merit as there is nothing corresponding in evidence to show that any letter or
intimation was sent to petitioner for his unauthorized absence from his duties. Rather, it is projected
to be case as if petitioner came of his own for work and left the work of his own sweet will. The
plea of petitioner, on the other hand remains that fictional breaks were given to him and that several
persons junior to him namely Smt. Guddi Devi, Sh. Prithi Chand, Sh. Ravinder Kumar, Sh. Dalip
Singh, Sh. Gautam Ram, Sh. Bhawani Singh and Sh. Ram Dhan have been regularized by
respondent and these persons were actually not given fictional breaks at any point of time.
11. A bare glance on mandays chart Ex. RW1/C would reveal that in the year 1999
petitioner had worked for 73 days, 129 days in the year 2000, 162 days in the year 2001, 137 days
in the year 2002, 165 days in the year 2003, 150.5 days in the year 2004, 151 days in the year 2005,
143 days in the year 2006, 221 days in the year 2007, 334.5 days in the year 2008, 357 days in the
year 2009, 359 days in the year 2010, 357 days in the year 2011, 340 days in the year 2012, 365
days in the year 2013 and 210 days in the year 2014. It can be noticed that till 2007 petitioner has
worked for less than 240 days whereas for other remaining years he had worked for more than 240
days. It may be pertinent to state here that vide letter dated 14.9.2007 Ex. PX direction has been
given by government to provide muster roll to all labourers who have been engaged for 15/20 days
or 30 days be provided muster roll for full month in certain situation but his instruction appears to
be have been completely ignored by respondent department as claimant petitioner was engaged in
1999 much prior to year 2006 and had not completed 10 years who was to be issued muster roll for
full month in relaxation of policy as special case. Thus, break in service being within a period of
nine years from his termination was definitely a fictional break as in remaining years he had
worked for more than 240 days. The act of the respondent in giving fictional break is manifestly
arbitrary without any basis. Seniority list of regular labourers HPPWD (B&R) Division has also
been relied upon by respondent which is Ex. RW1/D on record in which all the persons named
above are shown to have joined in the years 2000, 2002, 2003 and 2004 except at serial nos. 1 to 3
who had joined earlier to petitioner as workman at serial no.4 joined in the year 1999 whereas
petitioner had joined in February, 1999. Since respondent had not disputed to have engaged
petitioner in February, 1999, he ought to have been regularized having continuously worked for
about 9 years with requisite number of days required for regularization and there being no fictional
break as stated above, which would show that other persons who had joined alongwith him have
been regularized but the petitioner has been deprived of his legitimate right for regularization till
now. Although respondent department ipso facto does not dislodge petitioner from claiming his
seniority and continuity in service from his initial engagement and thus fictional breaks in no
manner would affect or eclipse him legitimate right of regularization in service.
12. Stepping into the witness box as PW1, petitioner has sworn detailed affidavit under
Order 18 Rule 4 CPC stipulating therein that he had been engaged and disengaged between 1999 to
2007 by giving fictional break whereas the persons junior to her have been continuously engaged
by department for the whole year who had completed more than 240 days in a calendar year. In
cross-examination, he has admitted that he has been provided work more than 240 days of work
after September, 2007 which means the dispute is only for the years 1999 to 2007 as stated in the
affidavit. RW1 Shri B.S. Barwal has admitted in cross-examination that seniority list Ex. RW1/D of
all the labourers shown in the said seniority list were employed after the engagement of the
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petitioner. He has admitted that working of 240 days is to be established by petitioner to claim
benefit of deemed service under Section 25-B of the Act. He has admitted that petitioner has been
engaged in the year 1999 who had not been issued any appointment letter. He has denied that
petitioner had been deliberately given breaks in the years from 1999 to 2007 but he could not prove
as no corresponding record has been produced by the respondent to establish that on absence of
petitioner from his duty any notice was issued for unauthorized absence and the version of RW1
that he came and go of his own from duty cannot be accepted which manifestly appear to be
afterthought. Moreover, RW1 has admitted that as per record no notice was given to petitioner for
his absence from duty at any point of time. As such, the plea of fictional break given to the
petitioner from the year 1999 to 2007 get substantiated not only from documentary evidence on
record but from testimony on oath of RW1 as well.
13. Although, petitioner being in employment at the time of passing of having fictional
breaks as stated above is duly established yet he cannot be deprived of his legitimate right to seek
seniority as well as continuity in service form his date of joining along-with other persons working
with him besides petitioner could not have been discriminated arbitrarily between similarly situated
workmen. No reason whatsoever has been assigned by respondent for not giving any fictional
breaks to others which further shows that plea of non availability of work or the funds as the case
may be was not correct stand of respondent made with the object to defeat the claim of petitioner.
In view of aforesaid discussion, it is held that time to time termination of the services of the
petitioner and giving fictional breaks in service by the respondent from 1999 to 2007 was certainly
illegal and unjustified in contravention of provisions of Section 25-F, 25-G & 25-H of the Act but
as the petitioner is still in employment with the respondent, he is to be given benefit of seniority
and continuity in service except back wages particularly when he has admitted to have remained
gainfully employed while working as an agriculturist. Issue in question is thus as stated above
decided in part in favour of the petitioner and against the respondent.
ISSUE NO.3
14. On the plea non-maintainability of the claim petition under Section 10 of the Industrial
Disputes Act, ld. Dy. D.A. representing respondent department has contended that present claim
petition is not maintainable as the petitioner had abandoned the job of his own and did not join his
duty despite issuance of muster roll for the relevant period. From the pleadings of the parties and
evidence on record as discussed in foregoing paras, no inference of claim petition being not
maintainable could be raised instead the same is held to be maintainable. As such, the issue in hand
is decided in favour of the petitioner and against the respondent.
ISSUE NO. 5
15. In the light of my findings on the issues no.1 and 2 in foregoing para, it is held that the
Executive Engineer, HPPWD, National Highway Division, Joginder Nagar is not a necessary party
to be impleaded in this case. Claim petition as petitioner was initially appointed with respndoent
only PW1 has admitted in crossexamination that he was working with respondent although he
earlier worked with Executive Engineer HPPWD National Highways. Thus, creation of separate
HPWPD division vide office order Ex. RW1/D shall have no serious consequence on merits of
case. Issue in hand is answered in negative in favour of petitioner and against respondent.
ISSUE NO. 4
16. It is settled preposition of law that in case a dispute is referred to for determination,
the Court will have to return a finding on merits and the delay in raising the dispute may be
considered by the Court at the time of granting the final relief, as has been held by our own Hon’ble
2293
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
High Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional Manager, HPFC & another
vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more than 10 years was held to have
not come in the way of the workman whose services were illegally terminated by holding that the
provisions of Limitation Act is not applicable to industrial dispute but however, depending upon
the facts and circumstances of each case, the principle of delay and laches have to be seen and
applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal Law Journal 248, there
was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP No. 812 of 2000, there was
a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional Manager vs. Mohinder Kumar,
there was a delay of 14 years. In Naginder Kumar vs. HPSEB and anr. 2008 (1) SLJ (H.P.) 425,
it has been held by the Hon’ble High Court of H.P. that the Labour Court cannot dismiss the claim
on the ground of delay and laches once the same has been referred by the State Government and the
Labour Court is bound to decide the reference which was made by the State Government and same
is required to be adjudicated upon the merits without touching the aspect of delay and laches. The
Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs. Gopal Bhiva & Ors, AIR 1964 SC 752, has
categorically held that as such of all those employees, who are entitled to take the benefit of Section
33-C (2) may not always be conscious of their rights and it may not be right to put the restriction of
limitation in respect of claim which they may have to make under the provision and in absence of
any provision for limitation, it may not be open to the Court to introduce the limitation on the
ground of fairness and justice. In Ajayab Singh vs. Sirhind Co-operative Marketing-cum-
Processing Society Limited and Another, (1999) 6 SCC 82, it has been observed by the Hon’ble
Supreme Court that:
“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding
under the ID Act. The relief under the ID Act cannot be denied merely on the ground of delay. The
plea of delay if raised by the employer is required to be proved as a matter of fact by showing the
real prejudice and not as a merely hypothetical defence. No reference to the Labour Court can be
generally questioned on the ground of delay alone”.
17. No material has been placed on record by the respondents to establish that there was
inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any
prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot
be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is
decided against the respondent and is answered accordingly.
RELIEF
18. As sequel to my findings on foregoing issues, it is held that the petitioner was in
continuous uninterrupted service with the respondent from the date of his initial engagement and
that the breaks given by the respondent being fictional in nature shall have no effect on the
seniority and continuity of service of the petitioner and his seniority shall be reckoned from his
initial date of engagement. Accordingly, claim of petition is hereby allowed and reference is
accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in
continuous service of respondent with all consequential benefits except back wages. He shall,
however, be considered for regularization by respondent at the time when his juniors have been
regularized as per policy governing daily wagers as framed by State Govt. and operative from time
to time. The parties, however, shall bear their own costs.
19. The reference is answered in the aforesaid terms.
20. A copy of this Award be sent to the appropriate Government for publication in the
official gazette.
21. File after due completion be consigned to the Record Room.
2294
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
Announced in the open Court today this 30th day of May, 2015.
By order,
K. K. SHARMA,
Presiding Judge,
Labour Court-cum-Industrial
Tribunal, Dharamshala, H.P.
___________
c vnkyr lqjs'k dqekj uk;c rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh] rglhy [kqf.M;ka]
ftyk dkaxM+k ¼fg0 iz0½
dsl ua0 % 01/NT/2015/Misc.
rkjh[k is'kh % 30&07&2015
Jherh 'kdqUryk nsoh iq= Jh gehj pUn] fuoklh xkao nks/k#] Mkd?kj yxMw] rglhy [kqf.M;ka]
ftyk dkaxM+k ¼fg0 iz0½A
cuke
vke turk
muoku eqdÌek % tsjs /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969 ds rgr e`R;q iathdj.kA
bZ'rgkj cuke vke turk %&
izkfFkZ;k Jherh 'kdqUryk nsoh iq= Jh gehj pUn] fuoklh xkao nks/k#] Mkd?kj yxMw] rglhy
[kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½ us Lo;a mifLFkr gksdj izkFkZuk&i= izLrqr fd;k gS fd esjk tUe fnukad
1&06&1948 dks gqvk gS] dk iathdj.k dkuwu dh tkudkjh u gksus ds dkj.k xzke iapk;r iq[k: ds
vfHkys[k esa ntZ u gks ldk gSA vr% esjh tUe frfFk dk iathdj.k xzke iapk;r iq[k: ds vfHkys[k esa ntZ
fd;k tk;sA
vr% bl lEcU/k esa loZlk/kkj.k ,oa fj'rsnkjksa dks lquokbZ gsrq ctfj;s b'rgkj o eqL=h equknh }kjk
lwfpr fd;k tkrk gS fd bl lEcU/k esa fdlh izdkj dk mtj@,rjkt gks rks og fnukad 30&07&2015
dks vlkyru ;k odkyru is'k gksdj viuk ,rjkt ntZ djok ldrk gSA mlds mijkUr dksbZ Hkh
mtj@,rjkt tsj lek;r u gksxk rFkk Jherh 'kdqUryk nsoh iq=h Jh gehj pUn dh tUe frfFk dk
iathdj.k fnukad 1&06&1948 tsjs /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969 ds rgr xzke
iapk;r iq[k: ds vfHkys[k esa ntZ djus ds vkns'k ikfjr dj fn;s tk;saxsA
vkt fnukad 03&07&2015 dks esjs gLrk{kj o eksgj vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
uk;c rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh]
[kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½A
&&&&&&&
c vnkyr lqjs'k dqekj uk;c rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh] rglhy [kqf.M;ka]
ftyk dkaxM+k ¼fg0 iz0½
dsl ua0 % 02/NT/2015/Misc.
rkjh[k is'kh % 25&07&2015
2295
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
Jh deynso jk.kk iq= Jh vej flag jk.kk] fuoklh xkao dksVw <ksfj;k] Mk0 e>h.k] rglhy [kqf.M;ka]
ftyk dkaxM+k ¼fg0 iz0½A
cuke
vke turk
muoku eqdÌek % fg0 iz0 'kknh iathdj.k vf/kfu;e] 1996 dh /kkjk 8¼4½ ds rgr 'kknh dk iathdj.kA
vkns'k %&
izkFkhZ Jh deynso jk.kk iq= Jh vej flag jk.kk] fuoklh xkao dksVw <ksfj;k] Mk0 e>h.k] rglhy
[kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½ us Lo;a mifLFkr gksdj izkFkZuk&i= izLrqr fd;k gS fd esjh 'kknh fnukad
3&12&2014 dks Jherh fgedq'kk iq=h Jh dqynhi flag Bkdqj] fuoklh xkao lekrkuk dyka] rglhy cM+lj]
ftyk gehjiqj ¼fg0 iz0½ ds lkFk lkekU; fgUnw jhfr fjokt ls gqbZ Fkh] ijUrq dkuwu dh tkudkjh u gksus ds
dkj.k 'kknh dk iathdj.k xzke iapk;r e>h.k] rglhy [kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½ ds vfHkys[k esa
ntZ u gks ldk gSA vr% gekjh 'kknh dk iathdj.k xzke iapk;r e>h.k ds vfHkys[k esa ntZ fd;k tk;sA
vr% loZlk/kkj.k o fj'rsnkjksa dks lquokbZ gsrq ctfj;s b'rgkj o eqL=h equknh }kjk lwfpr fd;k
tkrk gS fd bl lEcU/k esa fdlh izdkj dk mtj@,rjkt gks rks og fnukad 25&07&2015 dks vlkyru
;k odkyru is'k gksdj viuk ,rjkt ntZ djok ldrk gSA mlds mijkUr dksbZ Hkh mtj@,rjkt tsj
lek;r u gksxk rFkk Jh deynso jk.kk iq= Jh vej flag jk.kk o Jherh fgedq'kk Bkdqj iq=h Jh dqynhi
flag Bkdqj dh 'kknh dk iathdj.k xzke iapk;r e>h.k] rglhy [kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½ ds
vfHkys[k esa ntZ djus ds vkns'k ikfjr dj fn;s tk;saxsA
vkt fnukad 3&7&2015 dks esjs gLrk{kj o eksgj vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
uk;c rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh]
rglhy [kqf.M;ka] ftyk dkaxM+k ¼fg0 iz0½A
&&&&&&&
c vnkyr mi&e.My n.Mkf/kdkjh] fupkj] fLFkr Hkkck uxj] ftyk fdUukSj
c eqdnek 'kh"kZd %
thou yky iq= Jh xks'oj flag] fuoklh xkao o Mkd?kj ikuoh] rglhy fupkj] ftyk fdUukSj]
fg0 iz0A
cuke
vke turk
bf'rgkj ckcr iq=h dk uke ifjokj jftLVj esa ntZ djus ckjsA
bf'rgkj
mijksDr nj[okLr thou yky iq= Jh xks'oj flag] fuoklh xkao o Mkd?kj ikuoh] rglhy fupkj]
ftyk fdUukSj] fg0 iz0 ls cjk, xzke iapk;r ikuoh ds vfHkys[k esa mudh iq=h dq0 f'kokuh usxh dk uke
muds ifjokj jftLVj esa ntZ djus ckjs izkIr gqvk gS ftlds vUrxZr mUgksaus xqtkfj'k dh gS fd mudh
2296
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
iq=h dq0 f'kokuh usxh dk uke xzke iapk;r ikuoh esa muds ifjokj jftLVj esa ntZ fd;k tk,A vr%
vuqjks/k fd;k gS fd lfpo xzke iapk;r ikuoh dks vkns'k fn;k tk, fd og dq0 f'kokuh usxh dk uke
Jh thou yky ds ifjokj jftLVj esa ntZ djus ds vkns'k fn, tk,aA
vr% vke turk dks bl bf'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd vxj fdlh dks
dq0 f'kokuh usxh iq=h thou yky] fuoklh xkao ikuoh] rglhy fupkj] ftyk fdUukSj dk uke muds
ifjokj jftLVj esa ntZ djus ij dksbZ ,rjkt gks rks og fnukad 29 tqykbZ] 2015 dks izkr% 10 cts
vlkyru ;k odkyru vnkyr gtk esa gkftj gks dj viuk ,rjkt is'k djsa vU;Fkk dq0 f'kokuh usxh
iq=h thoku yky dk uke muds ifjokj jftLVj esa ntZ djus ds vkns'k lfpo xzke iapk;r ikuoh dks
fn;s tk,axsA
vkt fnukad 25 twu] 2015 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
uhye nqYVk ¼fg0iz0ls0½]
mie.My n.Mkf/kdkjh]
fupkj fLFkr Hkkck uxj] ftyk fdUukSjA
&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] rglhy eukyh] fgekpy izns'k
Jh lUtw eyk iq= Lo0 Jh jru ogknqj eyk] fuoklh edku ua0 107] okMZ ua0 7] xksEik jksM
eukyh] rglhy eukyh] ftyk dqYywA
cuke
vke turk
fo"k;-&izdk'ku b'rgkj ckcr tUe frfFk iathdj.k tsj /kkjk 13¼3½ tUe ,oa e`R;q vf/kfu;e] 1969-
uksfVl cuke % vke turkA
Jh lUtw eyk iq= Lo0 Jh jru ogknqj eyk] fuoklh edku ua0 107] okMZ ua0 7] xksEik jksM
eukyh] rglhy eukyh] ftyk dqYyw] fg0 iz0 us bl U;k;ky; esa vkosnu i= e; 'kiFk&i= xqtkjk gS fd
mldk tUe fnukad 14&03&1979 dks gqvk gS ijUrq mldh tUe frfFk uxj ifj"kn~ eukyh ds fjdkMZ esa
ntZ ugha dh xbZ gS] ftls vc ntZ djokus ds vkns'k lknj Qjek;s tkosaA
vr% loZlk/kkj.k dks bl b'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks lUtw eyk
dh tUe frfFk ntZ djokus ckjs vkifŸk gks rks og fnukad 8&8&15 dks ;k blls iwoZ vnkyr gtk esa viuh
vkifŸk ntZ djok ldrk gSA blds mijkUr dksbZ Hkh mtj@,rjkt tsjs lek;r u gksxk rFkk fu;ekuqlkj
tUe frfFk ntZ djokus ds vkns'k ikfjr dj fn;s tk;saxsA
vkt fnukad 6&7&15 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
rglhy eukyh] ftyk dqYyw] fg0 iz0A
2297
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
c vnkyr dk;Zdkjh n.Mkf/kdkjh] rglhy eukyh] fgekpy izns'k
Jh xqj izlkn y[koj iq= Jh ukFkh yky y[koj] fuoklh iqtkynh] Mkd?kj [k[kokjh] rglhy
tuin Vhjh mŸkjk[k.MA
cuke
vke turk
fo"k;-&izdk'ku b'rgkj ckcr tUe frfFk iathdj.k tsj /kkjk 13¼3½ tUe ,oa e`R;q vf/kfu;e] 1969-
uksfVl cuke % vke turkA
Jh xqj izlkn y[koj iq= Jh ukFkh yky y[koj] fuoklh iqtkynh] Mkd?kj [k[kokjh] rglhy
tuin Vhjh mŸkjk[k.M us bl U;k;ky; esa vkosnu i= e; 'kiFk&i= xqtkjk gS fd mlds ekek Jh Jh/kj
dh e`R;q fnukad 24&3&2013 dks eukyh esa gqbZ gS ijUrq mldh e`R;q frfFk uxj ifj"kn~ eukyh ds fjdkMZ esa
ntZ ugha dh xbZ gS] ftls vc ntZ djokus ds vkns'k lknj Qjek;s tkosaA
vr% loZlk/kkj.k dks bl b'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks Jh/kj dh
e`R;q frfFk ntZ djokus ckjs vkifŸk gks rks og fnukad 6&8&15 dks ;k blls iwoZ vnkyr gtk esa viuh
vkifŸk ntZ djok ldrk gSA blds mijkUr dksbZ Hkh mtj@,rjkt tsjs lek;r u gksxk rFkk fu;ekuqlkj
e`R;q frfFk ntZ djokus ds vkns'k ikfjr dj fn;s tk;saxsA
vkt fnukad 6&7&15 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
rglhy eukyh] ftyk dqYyw] fg0 iz0A
&&&&&&&&
In the Court of Marriage Officer-cum-Sub-Divisional Magistrate (Rural),
District Mandi (H. P.)
In the matter of :
1.
Shri Narpat Ram s/o Shri Gummat Ram, r/o Village Padhar, P.O. Batheri, Tehsil
Padhar, District Mandi, H.P.(At present serving as Clerk at 239 Transit Camp Pandoh, District
Mandi, H.P.).
2.
Smt. Neelam Kumari d/o Shri Netar Singh, r/o Village Khiuri Abal, P.O. Rajgarh,
Tehsil Balh, District, Mandi, H.P. (at present wife of Shri Narpat Ram s/o Shri Gummat Ram, r/o
Village Padhar, P.O. Batheri, Tehsil Padhar, District Mandi, H.P.(At present serving as Clerk at
239 Transit Camp Pandoh, District Mandi H.P.)
. . Applicants.
Versus
General public
Subject.—Application for the registration of marriage under Section 15 of Special Marriage Act,
1954.
2298
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
Shri Narpat Ram s/o Shri Gummat Ram, r/o Village Padhar, P.O. Batheri, Tehsil Padhar,
District Mandi, H.P.(At present serving as Clerk at 239 Transit Camp Pandoh, District Mandi H.P.)
and Smt. Neelam Kumari d/o Shri Netar Singh, r/o Village Khiuri Abal, P.O. Rajgarh, Tehsil Balh,
District, Mandi, H.P. (at present wife of Shri Narpat Ram s/o Shri Gummat Ram, r/o Village
Padhar, P.O. Batheri, Tehsil Padhar, District Mandi, H.P.(At present serving as Clerk at 239
Transit Camp Pandoh, District Mandi H.P.) have filed an application along with affidavits in the
court of undersigned under Section 15 of Special Marriage Act, 1954 that they have solemnized
their marriage on 04-06-2015 according to Hindu rites and customs at Bheema Kali Temple Mandi,
District Mandi H.P. and they are living together as husband and wife since then. Hence, their
marriage may be registered under Special Marriage Act, 1954.
Therefore, the general public is hereby informed through this notice that any person who
has any objection regarding this marriage can file the objection personally or in writing before this
court on or before 04-08-2015 after that no objection will be entertained and marriage will be
registered.
Issued today on 4th day of July, 2015 under my hand and seal of the court.
Seal. Sd/-
Marriage Officer-cum-Sub-Divisional Magistrate,
Mandi ( Rural), District Mandi.
_______
c U;k;ky; dk;Zdkjh n.Mkf/kdkjh] mi&rglhy /keZiqj] ftyk e.Mh ¼fg0 iz0½
eqdÌek 'kh"kZd %
Jh #i yky iq= ekuk jke] fuoklh yqf/k;kuk] Mk0 iSgM] mi&rglhy /keZiqj] ftyk e.Mh
¼fg0 iz0½
- - izkFkhZA
cuke
vke turk
Jh #i yky iq= Jh ekuk jke] fuoklh yqf/k;kuk] Mk0 iSgM dk vkosnu bl dk;Zy; esa izkIr gqvk
gSA izkFkhZ viuh tUe frfFk xzke iapk;r iSgM esa ntZ djokuk pkgrk gSA izkFkhZ us vius leFkZu esa 'kiFk
i=] lfoZl fjdkMZ layXu dj j[ks gSaA
vr% vke turk dks ctfj;k bZ'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr vke turk
dks izkFkhZ dh tUe frfFk 7&9&1936 ntZ djus ckjs dksbZ ,rjkt gks rks og vlkyru o odkyru frfFk
25&8&2015 dks izkr% 10 cts gkftj gksdj is'k dj ldrk gS vU;Fkk xSj gkftjh dh lwjr esa dk;Zokgh
,d i{kh; vey esa ykbZ tk;sxhA
vkt fnukad 30&6&2015 dks esjs gLrk{kj o eksgj vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh
mi&rglhy /keZiqjA
&&&&&&&
c vnkyr lgk;d lekgrkZ f}rh; Js.kh] /keZiqj] ftyk e.Mh ¼fg0 iz0½
eqdÌek 'kh"kZd %
Jh ykyeu oekZ iq= Jh Hkh[ke jke] fuoklh HkrkSj] Mkd?kj iSgM] mi&rglhy /keZiqj] ftyk e.Mh
¼fg0 iz0½
- - izkFkhZA
2299
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
cuke
vke turk
- - izR;kFkhZA
fo"k;-& nj[okLr ojk;s n#LrhukekA
izkFkhZ Jh ykyeu oekZ iq= Jh Hkh[ke jke] fuoklh HkrkSj us bl vnkyr esa izkFkZuk i= izLrqr fd;k
gS fd mldk lgh uke ykyeu oekZ gS ijUrq dkxtkr eky egky HkrkSj o dqEgkjMk esa yky flag xyr
ntZ pyk vk jgk gSA izkFkhZ us vius leFkZu esa 'kiFk i=] udy ifjokj jftLVj o lfoZl fjdkMZ layXu
izLrqr fd;s gaSA
vr% vke turk dks bl bZ'rgkj }kjk lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr vke ;k [kkl
dks mDr uke n#Lrh djus ckjs esa dksbZ mtj@,rjkt gks rks og fefr 25&8&2015 dks izkr% 10 cts
gkftj gksdj is'k dj ldrk gS vU;Fkk xSj gkftjh dh lwjr esa dk;Zokgh ,d i{kh; vey esa ykbZ tk;sxhA
vkt fnukad 30&6&2015 dks esjs gLrk{kj o eksgj vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ]
mi&rglhy /keZiqjA
&&&&&&&
c vnkyr Jh jktho dqekj la[;ku lgk;d lekgrkZ izFke Js.kh] dksV[kkbZ] ftyk f'keyk] fg0 iz0
eqdÌek ua0 % 2@15
rkjh[k is'kh % 7&08&2015
Jh egs'k dqekj iq= Jh lqjr jke] xzke iknyh] Mkd?kj o rglhy dksV[kkbZ] ftyk f'keyk
¼fg0 iz0½
- - izkFkhZ
izkFkZuk i= n#Lrh jktLo fjdkMZ egky iknyh] [ksoV ua0 138] [krkSuh ua0 191 esa ntZ jkfguku
xaxk jke iq= Fk.kk iq= ukekyqe gVk, tkus ckjsA
bZ'rgkj
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2300
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&&&&&&&&
Before the Executive Magistrate-cum-Tehsildar Solan, District Solan, H. P.
In the matter of :
Shri Baldev Singh s/o Late Shri Durga Singh, r/o Village Rehoun, P.O. Bohli, Tehsil &
District Solan, Himachal Pradesh
. . Applicant.
Versus
General Public
. . Respondent.
NOTICE
Whereas applicant Shri Baldev Singh s/o Late Shri Durga Singh, r/o Village Rehoun, P.O.
Bohli, Tehsil & District Solan, Himachal Pradesh has submitted an application before the
undersigned for allowing him to enter his date of birth i.e. 09-10-1959 in the record of Gram
Panchayat Anhech, Tehsil & District Solan, as his date of birth has not been entered in the record of
Gram Panchayat Anhech, Tehsil and District Solan.
2301
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
The general public of the concerned area is hereby called upon to file objections, if any, in
the office of undersigned regarding entering the date of birth i.e. 09-10-1959 of Baldev Singh
s/o Late Shri Durga Singh in Gram Panchayat, Anhech, Tehsil & District Solan. The objections
should reach in this office on or before 07th August, 2015 positively; otherwise necessary order
will be passed to enter the date of birth of Baldev Singh s/o Late Shri Durga Singh in the record of
Gram Panchayat, Anhech, Tehsil & District Solan.
Seal.
Sd/-
Executive Magistrate,
Solan, District Solan, H. P.
________
Before the Executive Magistrate-cum-Tehsildar Solan, District Solan, H. P.
In the matter of :
Shri Harish s/o Late Shri Kalu Giri, r/o Village Matando, P.O. Deothi, Tehsil & District
Solan, Himachal Pradesh
. . Applicant.
Versus
General Public
. . Respondent.
NOTICE
Whereas applicant Shri Harish s/o Late Shri Kalu Giri, r/o Village Matando, P.O. Deothi,
Tehsil & District Solan, Himachal Pradesh has submitted an application before the undersigned
for allowing him to enter the date of birth i.e. 16-03-1995 of his son named Kumar Giri s/o
Shri Harish in the record of Gram Panchayat Deothi, Tehsil & District Solan, as his date of birth
has not been entered in the record of Gram Panchayat Deothi, Tehsil and District Solan.
The general public of the concerned area is hereby called upon to file objections, if any, in
the office of undersigned regarding entering the date of birth i.e. 16-03-1995 of Kumar Giri s/o
Shri Harish in Gram Panchayat, Deothi, Tehsil & District Solan. The objections should reach in
this office on or before 10th August, 2015 positively; otherwise necessary order will be passed to
enter the date of birth of Kumar Giri s/o Shri Harish in the record of Gram Panchayat, Deothi,
Tehsil & District Solan.
Seal.
Sd/-
Executive Magistrate,
Solan, District Solan, H. P.
________
Before the Executive Magistrate-cum-Tehsildar Solan, District Solan, H. P.
In the matter of :
Shri Harish s/o Late Shri Kalu Giri, r/o Village Matando, P.O. Deothi, Tehsil & District
Solan, Himachal Pradesh
. . Applicant.
Versus
General Public
. . Respondent.
NOTICE
2302
jkti=] fgekpy izns'k] 14 tqykbZ] 2015@23 vk"kk<+] 1937
Whereas applicant Shri Harish s/o Late Shri Kalu Giri, r/o Village Matando, P. O. Deothi,
Tehsil & District Solan, Himachal Pradesh has submitted an application before the undersigned
for allowing him to enter the date of birth i.e. 23-01-1998 of his son named Tilak s/o Shri Harish in
the record of Gram Panchayat Deothi, Tehsil & District Solan, as his date of birth has not been
entered in the record of Gram Panchayat Deothi, Tehsil and District Solan.
The general public of the concerned area is hereby called upon to file objections, if any, in
the office of undersigned regarding entering the date of birth i.e. 23-01-1998 of Tilak s/o
Shri Harish in Gram Panchayat, Deothi, Tehsil & District Solan. The objections should reach in
this office on or before 10th August, 2015 positively; otherwise necessary order will be passed to
enter the date of birth of Tilak s/o Shri Harish in the record of Gram Panchayat, Deothi, Tehsil &
District Solan.
Seal.
Sd/-
Executive Magistrate,
Solan, District Solan, H. P.
________
Before the Executive Magistrate-cum-Tehsildar Solan, District Solan, H. P.
In the matter of :
Rohini D/O Shri Hari Singh, R/O Village Anhech, P.O. Dagshai, Tehsil & District Solan,
Himachal Pradesh
. . Applicant.
Versus
General Public
. . Respondent.
NOTICE
Whereas applicant Rohini D/O Shri Hari Singh, R/O Village Anhech, P.O. Dagshai,
Tehsil & District Solan, Himachal Pradesh has submitted an application before the undersigned
for allowing her to enter the date of birth i.e. 30-10-1989 in the record of Gram Panchayat Anhech,
Tehsil & District Solan, as her date of birth has not been entered in the record of Gram Panchayat
Anhech, Tehsil and District Solan.
The general public of the concerned area is hereby called upon to file objections, if any, in
the office of undersigned regarding entering the date of birth i.e. 30-10-1989 of Rohini D/O
Shri Hari Singh in Gram Panchayat Anhech, Tehsil & District Solan. The objections should reach
in this office on or before 14th August, 2015 positively; otherwise necessary order will be passed
to enter the date of birth of Rohini D/O Shri Hari Singh in the record of Gram Panchayat Anhech,
Tehsil & District Solan.
Seal.
Sd/-
Executive Magistrate,
Solan, District Solan, H. P.
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