jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
cq/kokj] 13 tuojh] 2016@23 ikS"k] 1937
fgekpy izns'k ljdkj
[Authoritative English text of this Department Notification No. Home-B-B(I) 1/2016 dated as
required under Clause (3) of Article 348 of the Constitution of India.]
HOME DEPARTMENT
NOTIFICATION
Shimla-2, the 11th January, 2016
No. Home-B-B(1)1 / 2016.—In exercise of the powers conferred by Articles 233, 234 and
proviso to Article 309 of the Constitution of India read with sub-section (1) of section 4 of the
200&jkti=@2016&13&01&2016 ¼6703½
6704
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Himachal Pradesh Judicial Officers (Pay, Allowances and Conditions of Service) Act, 2003 (Act
No. 10 of 2003) and all other powers enabling him in this behalf, the Governor of Himachal
Pradesh, in consultation with the High Court of Himachal Pradesh, hereby makes the following
rules further to amend the Himachal Pradesh Judicial Service Rules, 2004, notified vide this
Department notification No. Home-B(B)2- 4/2002 dated 16th March, 2004 and published in Extra
ordinary Gazette, Himachal Pradesh dated 20th March, 2004, namely :—
1. Short title.—These rules may be called the Himachal Pradesh Judicial Service
(Amendment) Rules, 2016
2. Amendment of Schedule.—In the Schedule appended to the Himachal Pradesh
Judicial Service Rules, 2004, in Sr. No. 1, under Column No. 3, after entry 10. "Legal Advisor to
Lokayukta 01", the following entry shall be inserted, namely:—
" 11. President, District Consumer Disputes Redressal Forum, Una -01", and for the figures
"26" appearing against the word "Total" the figures "27" shall be substituted.
By order,
P. C. DHIMAN,
Additional Chief Secretary.
__________
LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Shimla, the 09th December, 2015
No: Sharm (A) 6-3/2014 (Awards).—In exercise of the powers vested under section 17(1)
of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the
publication of awards of the following cases announced by the Presiding Officer, Labour Court
Shimla on the website of the Department of Labour & Employment Government of Himachal
Pradesh:—
Sr.
No:
Case No:
Title of the Case
Date of
Award
1.
31/2011
Shri Manish Kumar V/s Head Development Alternative
Group, New Delhi.
04-11-2015
2.
83/2013
Shri Gauri Dutt V/S Xen, HPPWD Kumarsain.
04-11-2015
3.
75/2009
Shri Rakesh Kumar V/s Su-Kum Power System Ltd. Baddi.
09-11-2015
4.
71/2013.
Shri Shyam Singh V/S Registrar Y.S. Parmar University
Nauni
20-11-2015
5.
68/2013
Shri Rajesh Singh V/S -do-
20-11-2013
6.
76/2013
Shri Ishwar Dyal V/S -do-
20-11-2013
7.
70/2013
Shri Hem Raj V/S -do-
20-11-2013
8.
69/2013
Shri Bramba Nand V/S –do-
20-11-2013
6705
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
9.
75/2013
Shri Kishori Lal V/S -do-
20-11-2015
10.
86/2013
Shri Shamshad Ali V/S Solvopet Shakarpur Sirmour.
17-11-2015
11.
85/2013
Shri Sanjau Dutt V/S M/S -do-
17-11-2013
12.
01/2012
Shri Rajesh Kumar V/S M.D. HRTC, Shimla.
30-11-2015
13.
06/2011
Shri Prem Sing V/S M/S Concept cartonz, Baddi.
30-11-2015
14.
37/2015
Shri Sanjeev Kumar V/S Secy. Bhojia Dental College, Baddi.
30-11-2015
15.
80/2014
Shri Sunil Kumar V/S M/S Cyper Pharma, Baddi.
30-11-2015
By order,
Sd/-
Pr. Secretary ( Lab. & Emp.).
____________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
31 of 2011
Instituted on
:
21.7.2011
Decided on
:
4.11.2015
Manish K Prasad R/o Verma Niwas, Flat No.2, Opposite Block No.27, Sector-3, New
Shimla, HP.
…Petitioner.
Vs.
1. Development Alternative Group, through its M.D, B-32, Tara Crescent, Qutab
Institutional Area, New Dehli.
2. Vice President/Manager, Development Alternative Group, Set No.4, Block-6, Phase-3,
New Shimla, HP.
…Respondents.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner
:
Shri Sanjeev Sharma, Advocate.
For respondents
:
Already ex-parte.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether Shri Manish Kr. Prasad, Programme Executive, is a workman as per
provisions of section 2(s) of the Industrial Disputes Act, 1947? If yes, Whether the
termination of the services of Shri Manish Kr. Prasad w.e.f. 30.11.2009, who was
employed on contract as Programme Executive, for a period of one year by the Head
(HR) Development Alternative Group,, B-32, Tara Cresent Qutab, Institutional Area
New Dehli 110016 (ii) The Vice President/Manager, Development Alternative Group,,
6706
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Set No. 4, Block-6, Phase-3, New Shimla, HP. After completion of three months service
without serving notice, without holding enquiry and without following the provisions
of the Industrial Disputes Act, 1947 is legal and justified? If not to what back-wages,
service benefits and relief Shri Manish Kr. Prasad is entitled to from the concerned
management?”
2. In nutshell, the case of the petitioner is that for the post of Programme Executive, the
respondents had conducted the interview on 26th August, 2009 and as per offer letter dated 29th
August, 2009, he was selected as Programme Executive with settled terms and conditions and such
he joined the respondents company/group on 1st September, 2009 and appointed for a period of one
year w.e.f. 1st September, 2009 to 31st August, 2010. It is further stated that the petitioner served
the respondents with full sincerity, honesty, devotion and zeal but his services had been terminated
on 30.11.2009, illegally without complying the provisions of the Industrial Disputes Act, 1947
(hereinafter referred as to Act). The salary amounting to Rs. 22,000/- for the month of September,
2009 had been given to the petitioner and thereafter no salary had been given to him by the
respondents and when he demanded the due salary, his services had been terminated without giving
any prior notice and salary to him. It is also stated that neither the payment of earned leave/wages
had been paid to the petitioner nor compensation at the time of his termination for which he was
legally entitled and the respondents were bound to pay the same to him. Neither any enquiry had
been conducted against the petitioner nor any notice and compensation had been given to him. The
petitioner is a workman as per the Act as neither he was holding any managerial post nor he was
having any decision making power. Due to adamant attitude of the respondents, the conciliation
proceedings before the Labour-cum-Conciliation Officer, Shimla had failed. The respondents had
not paid earned wages for the months of October & November, 2009 amounting to Rs. 44,000/- and
compensation of Rs. 22,000/- before terminating his services which comes to Rs. 66,000/- along-
with leave encashment benefits. Against this back-drop a prayer for reinstatement with back wages
and all benefits along-with payment of Rs 66,000/- with interest @ 12% per annum and Rs.
50,000/- as damages and Rs. 15,000/- as litigation cost had been made.
3. By filing reply, the respondents have contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, contractual employment and
suppression of material facts. On merits, it has been asserted that the petitioner was appointed on
contract basis w .e .f. 1st September, 2009 to 31st August, 2010, who was on probation for a period
of six months from the date of joining. Since, his performance during the probation period was
unsatisfactory, the petitioner was given full opportunity to improve his performance and he was
warned several times but his performance had not improved, hence, as per terms and conditions of
the contract, his contract during the probation period had been terminated. It is further asserted that
the salary for the month of September, October and November, 2009 had been paid to the petitioner
vide cheque no. 719296 dated 9.10.2009, cehque no. 619114 dated 3.11.2009 and cheque no.
652714 dated 12.12.2009 and all the payments had been credited in his saving account and no other
amount was due. No departmental enquiry is required to be conducted in case of termination during
probation period. Since, the petitioner was appointed in the officer cadre on payment of
consolidated fee of Rs. 22,000/- per month, therefore, he cannot be termed as a workman. The
respondents prayed for the dismissal of the claim petition.
4. Rejoinder not filed. Pleadings of the parties give rise to the following issues which
were struck on 27.2.2013.
1. Whether the petitioner is a workman as per provisions of section 2(s) of the Industrial
Disputes Act, 1947?
...OPP.
6707
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
2. Whether the termination of the services of the petitioner w.e.f. 30.11.2009, by the
respondents is in violation of the provisions of Industrial Disputes Act, 1947? ...OPP.
3. If issue no.1 & 2 are proved in affirmative to what benefits & relief the petitioner is
entitled to?
...OPP.
4. Whether this petition is not maintainable?
...OPR.
5. Relief.
5. The respondents have filed written arguments on 9.7.2014. Besides having heard the
Learned counsel for the petitioner, I have also gone through the record of the case carefully.
6. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no. 2
No.
Issue no. 3
Not entitled to any relief.
Issue no. 4
No.
Relief.
Reference answered in favour of the respondents and against the
petitioner, per operative part of order.
REASONS FOR FINDINGS
Issue no. 1.
7. Before, I proceed further, it is relevant to point-out here that vide order dated
23.9.2015, the respondents were proceeded against ex-parte.
8. The learned counsel for the petitioner contended that on 1st September, 2009, the
petitioner had been appointed as Programme Executive on a monthly salary of Rs, 22,000/- for the
period of one year but his services had been terminated on 30.11.2009 without assigning any reason
and without complying the mandatory provisions of the Act. He further contended that though the
petitioner had been appointed as Programme Executive but neither he was holding any managerial
post nor any subordinates had been working under him, hence, he falls under the category of
workman as per section 2(s) of the Act.
9. On the other hand the case of the respondents is that since the petitioner was engaged
as Programme Executive, hence, he does not fall under the category of a workman as defined in
section 2 (s) of the Act, who had been appointed for a period of one year but due to unsatisfactory
work of the petitioner, during probation, his services had been terminated on 30.11.2009 as per
terms and conditions of his appointment letter.
10. To prove his case, the petitioner examined himself as PW-1, who has stated that on the
basis of interview held on 26.8.2009, he was employed by the respondents company as Programme
Executive at Shimla Office and in this regard appointment letter had been issued to him according
6708
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
to which he had to work w.e.f. 1.9.2009 to 31.10.2010 on the monthly salary of Rs. 22,000/-. He
worked continuously till 30.11.2009 with the respondent company without any break on which date
his services had been terminated illegally without any notice by an oral order. He had been paid the
salary for the month of September, 2009 only and thereafter when he demanded his salary he was
terminated from service. The copy of demand notice is Ex. PW-1/A. No enquiry had been
conducted against him. At the time of his termination, the work was available with the respondent
company. His colleagues are still working with the respondent company. His status in the company
was that of a workman.
11. Conversely, Shri M. K. Aeri, Head HR has appeared into the witness box as RW-1,
and tendered his affidavit Ex. PW-1/A in evidence wherein it has been stated that the petitioner had
been appointed as Programme Executive on contract basis on 1st September, 2009 for a period of
one year on consolidated fee of Rs. 22,000/- per month in the executive cadre, who was on
probation for a period of six months. The performance of the petitioner was not satisfactory during
the period of probation and he was given full opportunity to improve his performance by repeated
e-mails and personal discussion but he did not improve his performance. Thereafter, it was decided
to remove him from service in terms of his appointment and as per the direction of Ms. Kiran
Sharma, a termination letter dated 30.11.2009 had been issued to the petitioner. The salary for the
months of September, October and November, 2009 vide cheque no. 719296 dated 9.10.2009,
cehque no. 619114 dated 3.11.2009 and cheque no. 652714 dated 12.12.2009 and all the payments
had been credited in his saving account and no other amount was due. He also tendered the
appointment letter of the petitioner Ex. RW-1/B and termination letter Ex. RW-1/C. In the
crossexamination, he stated that the respondents company is a society and is duly registered as per
Societies Act. He has denied that the salary for the months of October and November, 2009, had
not been paid to the petitioner. He also denied that the petitioner was not holding any managerial
post.
12. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof it has become clear that the petitioner was appointed as Programme Executive vide
appointment letter dated 1st September, 2009 on contract basis for a period of one year. The plea
which has been taken by the petitioner is to this effect that since he was not performing any
managerial work, his case falls under the category of workman as prescribed in section 2 (s) of the
Act. Now, this Court is required to ascertain as to whether the petitioner falls within the category of
workman or not as per section 2 (s) of the Act. At this juncture, it would be relevant to re-produce
section 2 (s) of the Act, which reads as under “workman" means any person (including an
apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational,
clerical or supervisory work for hire or reward, whether the terms of employment be express or
implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or retrenched in connection with, or
as a consequence of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that
dispute, but does not include any such person:
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand
rupees per mensem or exercises, either by the nature of the duties attached to the office
or by reason of the powers vested in him, functions mainly of a managerial nature.”
6709
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
13. It is a settled provision of law that in determining as to whether a person is a workman
or not, the Court has to principally see the main or substantial work for which he was employed.
Neither the designation nor any incidental work done by him will get him out-side the preview of
the Act. The Hon’ble Supreme Court in (1994) 5 S.C.C 737, titled as H.R Adyanthaya and
others Vs. Sandoz (India) Ltd., and another has held that for an employee to be covered by the
definition of workman he must be employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work. If he falls within these categories, it has then to
be seen whether he comes within any of the four excluded categories mentioned in section 2 (s) of
the Act. The relevant portion of the aforesaid judgment reads as under:
24…………. Hence, the position in law as it obtains today is that a person to be a workman
under the ID Act must be employed to do the work of any of the categories, viz., manual,
unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is
not covered by either of the four exceptions of the definition. We reiterate the said
interpretation.”
14. In case reported in 2006-III LLJ (767) titled as Anand regional Co.op. Oil
Seedsgrowers Union Ltd. Vs. Shailesh Kumar Harshad Bhai Shah, the Hon’ble Supreme Court
has observed as under:
“For determining the question as to whether a person employed in an industry is a workman
or not; not only the nature of work performed by him but also terms of the appointment in
the job performed are relevant considerations”
“Supervision contemplates direction and control. While determining the nature of the work
performed by an employee, the essence of the matter should call for consideration. An
undue importance need not be given for the designation of an employee, or the name
assigned to the class to which he belongs. What is needed to be asked is as to what are the
primary duties he performs. For the said purpose, it is necessary to prove that there were
some persons working under him whose work is required to be supervised. Being incharge
of section alone and that too it being a small one and relating to quality control would not
answer the test.”
15. Therefore, the ratio of the aforesaid decisions makes it clear that for determining the
question as to whether a person employed in an industry is a workman or not, the nature of the
work performed by him is the main determining factor and his designation is immaterial. In the
present case, the plea of the petitioner is that he was appointed as a Programme Executive vide
appointment letter dated 1.9.2009, Ex. RW-1/B. In his statement as PW-1 also he deposed that he
had been working in the capacity of a workman. However, the respondent had failed to cross-
examine the petitioner on this aspect, therefore, it can reasonably be infered that the respondent
admitted this aspect of the matter. Moreover, no material pertaining to the nature of duties of the
petitioner has been brought on record by the respondent which could have shown the nature of
work being performed by the petitioner. Hence, in the absence of any evidence on record and cross-
examination of petitioner (PW-1) on behalf of respondent, it can safely be held that the petitioner
was not performing managerial functions with the respondent and as such he can be said to be a
workman as defined under section 2 (s) of the Act. Accordingly this issue is answered in favour of
the petitioner and against the respondents.
Issue no. 2
16. It is the admitted case of the parties that the petitioner was appointed by the respondent
as Programme Executive on contract basis as per appointment letter Ex. RW-1/B for a period of
6710
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
one year commencing from 1st September, 2999 to 31st August, 2010, on certain terms and
conditions. It is also not disputed that the services of the petitioner were terminated on 30.11.2009.
In the appointment letter Ex. RW-1/B, it has been clearly mentioned that the duration of
consultancy commences from 1st September, 2009 and terminates on 31st August, 2010, unless
otherwise extended or terminated by either side. It has come on record in the evidence of the
respondent that since the performance of the petitioner was not satisfactory during the period of
probation, who was given full opportunity to improve his performance by repeated e-mails and
personal discussion but he did not improve his performance, hence, his services had been
terminated in accordance with appointment letter Ex. RW-1/B. No doubt, the petitioner has tried to
establish that he was terminated in contravention of the provisions of the Act but when regard is
given to his appointment letter Ex. RW-1/B, it has been clearly mentioned therein that the
appointment is initially provisional for a period of six months from the date of joining while on
probation and during the period of probation either side could terminate the services without
assigning any reason. In Escorts Ltd. Vs. Presiding Officer & another reported in (1997) 11 SCC
521, it has been held by the Hon’ble Apex Court that where the terms of appointment enable the
employer to terminate the services at any stage, in such circumstances, termination of services even
though effected before the expiry of the specified period did not amount to retrenchment. The
relevant portion of the aforesaid judgment is reproduced as under:
“4……………Here also the services of the workman were terminated on 13.2.1987, as per
the terms of the contract of employment contained in the appointment letter dated 9.1.1987
which enabled the appellant to terminate the services of the workman at any stage without
assigning any reason. Since the services of the workman were terminated as per the terms of
the contract of employment, it does not amount to retrenchment under section 2(oo) of the
Act and the Labour Court was in error in holding that it constituted retrenchment and was
protected by sections 25-F and 25-G of the Act.”
17. In the present case also the services of the petitioner were terminated on 13.11.2009 as
per the terms of appointment mentioned in the appointment letter Ex. RW-1/B which enabled the
respondent to terminate the services of the petitioner during the period of probation without
assigning any reason. Since, the services of the petitioner had been terminated as per the terms of
the appointment, it does not constitute retrenchment in view of the clause (bb) of section 2(oo) of
the Act. Thus, keeping in view the law laid down (supra) and the entire evidence on record, the
petitioner has failed to prove that his termination w.e.f. 30.11.2009, is in violation of the provisions
of the Act. Hence, this issue is answered in negative.
Issue no. 3.
18. Since, I have held under issue no.2, above, that the petitioner has failed to prove that
his termination is in violation of the provisions of the Act, hence, this issue becomes redundant.
Issue no. 4.
19. The petitioner has filed the present claim petition consequent upon the reference
having been sent by the appropriate government for adjudication to this Court. But, in support of
this issue, no evidence was led by the respondent. However, I find nothing wrong with this petition
which is perfectly maintainable. Hence, this issue is decided in favour of the petitioner and against
the respondent.
Relief
As a sequel to my findings on the aforesaid issues, the claim of the petitioner fails and is
hereby dismissed. Consequently, the reference stands answered against the petitioner and in favour
6711
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
of the respondent. Let a copy of this award be sent to the appropriate government for publication in
official gazette. File, after completion be consigned to records.
Announced in the open Court today on this 4th Day of November, 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P)
Ref. No.
:
83 of 2013.
Instituted on.
:
11.11.2013.
Decided on
:
4.11.2015.
Gauri Dutt S/o late Shri Mast Ram, R/o Village Chhabaldi, P.O Gumma Tehsil & District
Shimla, HP.
…Petitioner.
Vs.
The Executive Engineer, HPPWD Division, Kumarsain, District Shimla, HP.
…Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri Naresh Sharma, Advocate.
For respondent : Shri Jagdish Rajta, ADA.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Gauri Dutt S/o late Shri Mast Ram R/o
Village Chhabaldi, P.O Gumma, TEhsil & District Shimla during April, 1991 by the
Executive Engineer, HPPWD Division Kumarsain District Shimla 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 nutshell, the case of the petitioner is that he was appointed as beldar/chowkidar on
daily wages basis with the respondent w.e.f. 1.1.1983 till December, 1992 thereafter his services
had been orally terminated without serving any prior notice as required under law. The petitioner
worked at various places under the respondent. It is further stated that the petitioner was not in his
good health since 11th April, 1992 and was undergoing treatment in the IGMC and his wife was
also in ailing condition and there was no one at home to look-after the patients. The petitioner had
completed 240 days in twelve calendar months and even in preceding to the date of his oral and
illegal termination. It is also stated that the petitioner had unblemished record of service, who never
6712
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
gave any opportunity of complaint. The petitioner made several requests seeking re-employment by
visiting the office of the respondent number of times but in turn he was assured that as and when
his services would be required, he should be called but the respondent chose not to offer
employment to him and even, many juniors namely Durga Nand, Mela Ram, Prem Chand, Sant
Ram etc. had been retained in service by the respondent. No compensation had been given to the
petitioner and due to ailment, the petitioner could not attend the department for work for which
period medical certificates were submitted by him to the respondent. Against this back-drop a
prayer for re-instatement along-with all consequential benefits including back-wages has been
made.
3. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua bared by time, maintainability, estoppel, abandonment
and that the claim petition is bad in the eyes of law. On merits, it has been asserted that initially the
petitioner was engaged as daily wages beldar w.e.f. 1.7.1983 by the Executive Engineer, Shimla
Division No. II and completed only 121 days in the year, 1983. The petitioner had worked
continuously having more than 240 days in each year except in the years, 1983 and 1991. The
services of the petitioner had not been terminated by the respondent, who himself had abandoned
the job after March, 1991. It is further asserted that the petitioner had never intimated the
respondent department about his illness and treatment in IGMC, Shimla. The respondent prayed for
the dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties give rise to the following issues which were struck on
18.7.2014.
1. Whether the termination of the services of the petitioner is illegal and unjustified as
alleged?
...OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
...OPP.
3. Whether this petition is not maintainable as alleged in preliminary objections no. 2 &
4?
...OPR.
4. Whether the petitioner is estopped from filing this petition by his own act and conduct?
...OPR.
5. Relief.
6. Besides having heard the Learned counsel for the parties, I have also gone through the
record of the case carefully.
7.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
No.
Issue no. 2
Not entitled to any relief.
Issue no. 3
Yes.
6713
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Issue no. 4
No.
Relief.
Reference answered in favour of the respondent and against the petitioner
per operative part of award.
REASONS FOR FINDINGS
Issue no. 1&3.
8. Being interlinked and correlated, both these issues are taken up for discussion and
decision.
9. The learned counsel for the petitioner contended that the services of the petitioner had
been terminated by the respondent illegally without serving any notice as required under section
25-F of the Act and even juniors to him are still working with the respondent. He further contended
that on account of illness of the petitioner and his wife, he was unable to attend the office of the
respondent.
10. On the other hand, Ld. ADA for respondent contended that the services of the
petitioner had never been terminated by the respondent department, who himself abandoned his job
without any intimation. He further contended that the petitioner had not come for work after March,
1991 and raised the industrial dispute on 2.1.2013, after a gap of more than twenty one years,
hence, the claim of the petitioner is liable to be dismissed.
11. To prove his case, the petitioner has appeared into the witness box as PW-1 and
tendered his affidavit Ex. PW-1/A in examination-in-chief wherein he has reiterated all the material
facts as stated in the claim petition. He also tendered in evidence documents Ex. PW-1/A, C-1 to
Ex. PW-1/A, C-58. In the cross-examination, he denied that he was engaged in the month of July,
1983 as daily waged beldar but stated that he was engaged in the month of Jan., 1983. He denied
that he had abandoned his job at his own without any intimation to the department in March, 1991.
He denied that Junior Engineer, HPPWD Baldehan had sent a letter dated 31.5.1991 through
registered post for calling him to join the duties. He admitted that he served demand notice on the
respondent on 2.1.2013 after the lapse of twenty one years. He denied that he had not completed
240 days in the year, 1983 and 1991, when he left the job at his own. He also denied that regarding
his illness, he had not informed the department.
12. In rebuttal, the respondent has examined two witnesses. RW-1 Shri Narender Kumar,
Junior Engineer, has brought the original record pertaining to this case. Ex. RW-1/A is the copy of
muster roll w.e.f. 1.4.1991 to 31.5.1991 and Ex. RW-1/B is the copy of letter dated 31.5.1991. The
copy of postal receipt is Ex. RW-1/C and the detail of mandays chart of the petitioner is Ex. RW-
1/D.
13. RW-2 Shri H.S Mehta, has stated that the petitioner was engaged as beldar on 1.7.1983
and thereafter on 1.4.1991, the petitioner had left the job on his own. Muster roll for the months of
April & May had been issued but the petitioner had not joined the service. Then a letter Ex, RW-
1/B to resume the duties had been issued to the petitioner through registered post Ex, RW-1/D but
of no avail. The petitioner never approached the respondent for his re-engagement. No medical
certificate had been submitted by the petitioner, whose services had not been terminated by the
respondent. In cross-examination, he stated that he had worked as Junior Engineer with the
respondent for the year, 1986 to 1997. He denied that the services of the petitioner had been
terminated orally. He also denied that the petitioner had informed the department that he himself
6714
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
and his wife was not keeping good health. He further denied that the petitioner had approached for
his reengagement several times. He admitted that the petitioner had completed 240 days in each
year except the years, 1983 and 1991. He also admitted that junior persons to the petitioner had
been retained by the department.
14. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof, it has become clear that the petitioner was engaged as beldar on daily wages by the
respondent in the month of July, 1983 as per mandays chart Ex. RP-1 and worked as such till
March, 1991 which fact is clear from year wise detail of working days Ex. RP-2. No doubt, the
petitioner has stated as PW-1 that he was engaged as daily wages beldar in the month of Jan., 1983
but in support of his such version he has not filed any document on record which could go to show
that he was engaged in the month of Jan., 1983. No record, in this regard was summoned by the
petitioner from the respondent in order to prove the actual date of engagement of the petitioner,
therefore, I have no other option but to hold that the services of the petitioner had been engaged by
the respondent in the month of July, 1983.
15. Now adverting to the other aspects of the case, the petitioner has categorically stated as
PW-1 that his services had been terminated by the respondent in an illegal manner without
following the mandatory provisions of the Act. The petitioner further stated that since he had fallen
ill on 11.4.1992 and was undergoing treatment in IGMC and during this period his wife also fell ill
and there was no one at home to look-after them, for this reason, he could not attend the
departmental work. In support of his such version, he has placed on record the prescription slips
along-with some laboratory test receipts and photocopies of x-ray forms, Ex. PW-1/A C-1 to Ex.
PW-1/A C-58. No doubt that the petitioner has tried to establish on record that since he alongwith
his wife were not keeping good health, he was unable to attend the office but in support of his such
version, no material has been placed on record by the petitioner which could go to show that he or
his wife remained ill in continuity and were advised rest by the Doctor. On the other hand, the
respondent has placed on record one registered letter Ex. RW-1/B along-with postal receipt Ex.
RW-1/C which shows that the petitioner was called to resume his duties but the petitioner failed to
report for his duties. The respondent has also placed on record the mandays chart Ex. RP-1 and
year wise detail of working days of petitioner Ex. RP-2. The mandays chart Ex. RP-1 also makes it
clear that after 31.3.1991, muster rolls had been issued in the name of the petitioner but he himself
had failed to report for duties. Had the services of the petitioner been terminated by the respondent,
there was no occasion for the issuance of muster rolls for the months of April, May and June, 1991.
The learned counsel for the petitioner contended that neither any notice was issued to the petitioner
by the respondent for his alleged willful absence from duties nor any enquiry was held, therefore, it
cannot be said that the petitioner had abandoned his job and as such the termination of the services
of the petitioner is in violation of the provisions of the Act. However, I am not inclined to accept
this contention of the learned counsel for the petitioner in view of the overwhelming evidence on
record which goes to show that the services of the petitioner had not been terminated by the
respondent rather he himself had abandoned his job. It has been held by the Hon’ble Apex Court
in (2013) 10 Supreme Court Cases 253 titled as Vijay S. Sathaye Vs. Indian Airlines Limited
and Ors. that absence from duty in the beginning may be a mis-conduct but when absence is for a
very long period, it may amount to voluntary abandonment of service. The relevant paras 12 to 14
are reproduced as under:
“12. It is a settled law that an employee cannot be termed as a slave, he has a right to
abandon the service any time voluntarily by submitting his resignation and alternatively, not
joining the duty and remaining absent for long. Absence from duty in the beginning may be
a misconduct but when absence is for a very long period, it may amount to voluntarily
6715
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
abandonment of service and in that eventuality, the bonds of service come to an end
automatically without requiring any order to be passed by the employer.”
“13. In Jeewanlal (1929) Ltd., Calcutta v. Its Workmen, this Court held as under (AIR p.
1570 para 6):
“......there would be the class of cases where long unauthorized absence may
reasonably give rise to an inference that such service is intended to be abandoned by
the employee.”
(See also: Shahoodul Haque v. The Registrar, Co-operative Societies,
“14. For the purpose of termination, there has to be positive action on the part of the
employer while abandonment of service is a consequence of unilateral action on behalf of
the employee and the employer has no role in it. Such an act cannot be termed as
‘retrenchment’ from service. (See: State of Haryana v. Om Prakash)”
16. In the instant case also as observed earlier when the respondent had issued registered
letter Ex. RW-1/B to the petitioner to resume his duties and also issued muster rolls for the months
of April, May and June, 1991 but despite that the petitioner had not joined the same, his such
conduct clearly speaks that he himself had abandoned his job and his case would not fall within the
definition of retrenchment as such there is no question of violation of any provision of the Act.
17. Moreover, it is the admitted case of the petitioner that he had raised the industrial
dispute on 2.1.2013, after a lapse of about twenty one years meaning thereby that he remained
silent for more than twenty one years. In (2013) 14 SCC 543, titled as Assistant Engineer
Rajasthan State Agriculture Marketing Board, Sub Division Kota Vs. Mohan Lal, it has been
held by the Hon’ble Apex Court that though the Limitation Act is not applicable to the reference
made under the I.D Act but delay in raising industrial Dispute is an important circumstance for
exercise of judicial discretion in determining relief that is to be granted. The relevant portion of
aforesaid judgment is reproduced as under:
“19. We are clearly of the view that though the Limitation Act, 1963 is not applicable to the
reference made under the ID Act but delay in raising industrial dispute is definitely an
important circumstance which the Labour Court must keep in view at the time of exercise of
discretion irrespective of whether or not such objection has been raised by the other side.
The legal position laid down by this Court in Gitam Singh that before exercising its judicial
discretion, the Labour Court has to keep in view all relevant factors including the mode and
manner of appointment, nature of employment, length of service, the ground on which
termination has been set aside and the delay in raising industrial dispute before grant of
relief in an industrial dispute, must be invariably followed.”
18. In the instant case also admittedly the petitioner had raised the industrial dispute after
lapse of about twenty one years and remained silent during this period without any plausible
explanation, as such, no relief can be granted to him as the evidence on record clearly shows that he
himself had abandoned his job. Hence, it cannot be said that the termination of the services of the
petitioner is illegal and unjustified. Consequently, these issues are answered accordingly.
Issue no. 2.
19. Since, the petitioner has failed to prove issue no.1, this issue become redundant.
6716
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Issue No. 4.
20. In support of this issue, no evidence was led by the respondent which could go to show
that the petitioner was estopped from filing this petition by his own act and conduct. Hence, this
issue is decided in favour of the petitioner and against the respondent.
Relief
As a sequel to my findings on the aforesaid issues, the claim of the petitioner fails and is
hereby dismissed. Consequently, the reference stands answered against the petitioner and in favour
of the respondent. Let a copy of this award be sent to the appropriate government for publication in
official gazette. File, after completion be consigned to records.
Announced in the open Court today on this 4th Day of November, 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
75 of 2009.
Instituted on
:
17.8.2009.
Decided on
:
9.11.2015.
1. Rakesh Kumar S/o Shri Tek Chand
2. Rajesh Kumar S/o Shri Prema Ram.
3.
Rajeev Kumar S/o Shri Lek Ram.
4. Sunil Kumar S/o Shri Ram Singh.
5. Sanjeev Kumar S/o Shri Lekh Ram
6. Sanjay Thakur S/o Shri Ram Ditta Gupta.
All working under the Managing Director, M/s Su-Kam Power System Ltd., 64, 71 DIC
Industrial Area Baddi, Tehsil Nalagarh, District Solan, HP.
...Petitioners.
Vs.
The Managing Director, M/s Su-Kam Power System Ltd., 64, 71 DIC Industrial Area
Baddi, Tehsil Nalagarh, District Solan, HP.
...Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Smt. Nishi Goel along-withShri Rakesh Thakur, Advocate.
For respondent : Shri Rahul Mahajan, Advocate.
6717
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
AWARD
The following reference has been sent by the appropriate government for adjudication:
1. “Whether the transfer of S/Shri Sanjeev Kumar, Rajeev Kumar, Sanjay Thakur,
Sunil Kumar & Rakesh Kumar to different branches of M/s Su-Kam Power
Systems Limited at Gurgaon, Dehli, Jaipur and suspension of Shri Rajesh Kumar
and thereafter dismissal of workman S/Shri Sanjeev Kumar, Rajeev Kumar,
Sanjay Thakur, Sunil Kumar & Rakesh Kumar from service on 30.4.2009
alongwith suspended workman Shri Rajesh Kumar on the ground of major
misconduct by the management, as alleged by the management of M/s Su-Kam
Power System Ltd., 64, 71 DIC Industrial Area Baddi, Tehsil Nalagarh, District
Solan, HP. Is legal and justified? If not, what relief and consequential service
benefits above workmen are entitled to?”
2. “Whether strike resorted by the workmen of M/s Su-Kam Power System Ltd., 64,
71 DIC Industrial Area Baddi, Tehsil Nalagarh, District Solan, HP w.e.f.
28.7.2009 against the transfer/suspension and further dismissal of S/Shri Sanjeev
Kumar, Rajeev Kumar, Sanjay Thakur, Sunil Kumar, Rakesh Kumar & Rajesh
Kumar is legal or illegal and its effect?”
2. In nutshell, the case of the petitioners is that they joined the services with the
respondent industry on different dates as mentioned in Annexure A-1. The Managing Director,
under mistaken notion and ignorance of the law, terminated the services of the petitioners from the
dates as mentioned in chart Annexure A-1 as no notice under section 25-F of the Industrial
Disputes Act, 1947 (hereinafter referred as to Act) was served on the petitioners. Juniors namely
S/Shri Jai Kumar, Tarsem, Des Raj, Rajinder Kumar, Vinay and Hakam had been retained by the
respondent. All the petitioners have completed 240 days in every calendar year. It is further stated
that the respondent company deliberately harassed the petitioners and to this effect complaints
dated 28.7.2009, 31.7.2009, 17.8.2009 and 19.8.2009 have been written by them to different
authorities. The workers of the company were sitting out-side the factory gate and demonstrating
their agitation peacefully to fulfill their demands but the respondent deliberately harassed the
workers and they were transferred to other different places. No transfer orders have been served
and the services of the petitioners had been terminated without giving opportunity of being heard to
them. No appointment letters have been issued to the petitioners by the respondent at the time of
their appointment in the company and they had been transferred out-side the State with malafide
intentions. The conciliation proceedings were failed due to adamant attitude of the respondent. It is
also stated that without conducting any fair enquiry against the petitioners, their services have been
dispensed with and that no proper opportunity of being heard was afforded to them. The petitioners
have no other source of income to support their large family. Against this back-drop a prayer for
their reinstatement with all consequential benefits and seniority has been made.
3. The respondent has filed the reply on 1.7.2010 but on 7.6.2013 and application under
order 6 rule 17 CPC for amendment of reply has been filed by the respondent which was allowed
vide order dated 4.6.2014. By filing amended reply the respondent has taken various preliminary
objections including that the statement of claim is liable to be rejected for lack of proper pleading
by the petitioners, the reference is bad in law and the petitioners are gainfully employed. On merits,
it has been asserted that the petitioners S/Shri Rakesh Kumar, Rajesh Kumar, Rajeev Kumar, Sunil
Kumar, Sanjay Kumar and Sanjay Thakur had joined the respondent company on 1.8.2006,
1.3.2007, 1.6.2005, 17.12.2003, 1.3.2006 and 1.3.2007 respectively. The petitioners have indulged
in grave acts of bad behavior and gone to the height of transgression that is not at all expected from
6718
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
any industrial workman. The acts of misconduct ranges from insubordination, manhandling
security personnel and reporting supervisors, open intimidation to staff, misbehaving and riotous
conduct, holding dharna and demonstration, sitting besiege of factory compound, inciting other
workers to proceed on strike, causing obstruction and hampering production and as such the
services of the petitioners were terminated. Since, it is not a case of retrenchment, there is no legal
requirement for compliance under section 25-F of the Act and the retention of juniors is also not
relevant being not a case of retrenchment. The petitioners were duly served with the notice of their
termination from the company along-with one month’s salary and other dues on their prescribed
addresses. It is further asserted that petitioner Rakesh Kumar after refusing to receive his transfer
order started indulging in disruptive activities along-with other petitioners and few out-siders and
incited other workers to proceed on strike, which started from 27.7.2009 and continued till
13.8.2009, when the strike was prohibited. During the strike, the petitioner and his accomplices led
violent agitation ranging from threatening staff, shouting filthy slogans, hurling foul abused and
manhandling fellow workmen. The petitioner Rakesh Kumar was transferred to Gurgaon vide
transfer order dated 23.7.2009 which was refused to receive by the petitioner and as such the
transfer order had been sent through registered post at this available address. The services of the
petitione rs had been dismissed for major misconduct vide detailed order dated 30.7.2009 without
conducting a domestic enquiry due to atmosphere of fear and tension having been created by the
petitioners. It is also asserted that the petitioners are gainfully employed having good source of
income. The respondent prayed for the dismissal of the claim petition.
4. By filing rejoinder to the amended reply, the petitioners reaffirmed the allegations by
denying those of the respondent.
5. Pleadings of the parties give rise to the following issues which were struck on 4.9.2010
and 7.1.2015.
6. Whether the transfer of petitioners S/Shri Sanjeev Kumar, Rajiv Kumar, Sanjay
Thakur, Sunil Kumar & Rakesh Kumar to different branches of respondent company
was illegal and unjustified as alleged?
...OPP.
7. Whether petitioner Rajesh Kumar was put under suspension in an illegal and
unjustified manner as alleged?
...OPP.
8. Whether petitioners S/Shri Sanjeev Kumar, Rajiv Kumar, Sanjay Thakur, Sunil
Kumar, Rakesh Kumar along-with suspended workman Shri Rajesh Kumar were
dismissed on the ground of major misconduct by the respondent in illegal and
unjustified manner as alleged?
...OPP.
9. To what relief, the petitioners are entitled to if all or any of the above issues stand
proved?
. . .OPP.
10. Whether the strike resorted by the workmen of respondent company against the
transfer/suspension and further dismissal of petitioners S/Shri Sanjeev Kumar, Rajiv
Kumar, Sanjay Thakur, Sunil Kumar, Rakesh Kumar and Rajesh Kumar was legal as
alleged? If so, its effect?
5-A. Whether the respondent is entitled to lead evidence on merits before this Court to
prove the misconduct of the petitioners in case their dismissal is found to be in
violation of the principles of natural justice?
. . .OPR.
6719
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
11. Relief.
6. The parties have led their evidence in support of the aforesaid issues.
7. To support their case, all the petitioners have stepped into the witness box. Petitioner
Shri Sunil Kumar has appeared into the witness box as PW-1 and tendered his affidavit, Ex. PW-
1/A in examination-in-chief wherein he has stated that he was given appointment by the respondent
in December, 2003 as helper and worked till July, 2009 on monthly salary of Rs. 4500/- along-with
other benefits. He performed his duties to the satisfaction of the employer as helper/Sr. fitter
without any complaint till his illegal retrenchment. He had competed 240 days in a year and the
preceding year. His juniors namely S/Shri Jai Kumar, Hakam Singh, Tarsem Kumar and Sanjeev
Kumar had been retained by the respondent company. Neither any notice had been issued to him
nor any enquiry had been conducted. He requested for his reengagement but of no avail. Since, he
was illegally retrenched by the respondent, hence, he is entitled to all consequential benefits
including back–wages etc. In cross-examination, he admitted that the chargesheet Ex. PR-1 dated
7.7.2009 had been issued to him by the respondent. He also admitted that vide Ex. PR-2, he replied
the chargesheet. He denied that he refused to receive show cause notices dated 17.6.2009 and
23.6.2009. He admitted that vide letter dated 23.7.2009, Ex. PR-3, he was transferred from Baddi.
He also admitted that he had not joined his new place of posting. He denied that on 27.7.2009 he
along-with other petitioners had formed a group and threatened the security guards, Sanjay Kumar,
Ramesh and Parvinder. He denied that on 28.7.2009 and 29.7.2009, he along-with other petitioners
forcibly stopped the willing workers to enter the factory premises and instigated strike, used
abusive language against the officials of respondent company. He also denied that he along-with
other petitioners created atmosphere of fear and lawlessness and had not allowed any worker to
perform the duties. He admitted that the respondent had filed a suit for injunction against him and
other petitioners in the Court of Ld. Civil Judge, Sr. Division Nalagarh, the copy of which is Ex.
PR-7. He expressed his ignorance that Pankaj Jha and Ajay Pandey were also transferred, along-
with him, who have joined their new place of posting. He denied that he was terminated on account
of misconduct being indulged in by him.
8. PW-2 Shri Sanjeev Kumar tendered his affidavit Ex. PW-2/A in examination-in-chief
wherein he stated that he was given appointment by the respondent in March, 2005 as helper on
monthly salary of Rs. 5,200/- and worked as such till July, 2009. In the crossexamination, he
denied that the respondent had issued chargesheet Ex. PW-2/B dated 7.7.2009 to him. He further
denied that show cause notice Ex. PW-2/C dated 17.6.2009 regarding less production and wrongful
rejection inventor pieces, had been issued to him. He admitted that vide letter Ex. PW-2/D dated
10.7.2009, he had filed reply to chargesheet and show cause notice. He denied that show cause
notice Ex. PW-2/E dated 24.6.2009 for remaining absent from duties had been received by him. He
admitted that he was transferred from Baddi vide letter dated 23.7.2009, Ex. PW-2/F. He also
admitted that letter Ex. PW-2/D had been written by him in his hand. He further admitted that he
had not joined his new place of posting. He denied that on 27.7.2009 he along-with other
petitioners had formed a group and threatened the security guards, Sanjay Kumar, Ramesh and
Parvinder. He denied that on 28.7.2009 and 29.7.2009, he along-with other petitioners forcibly
stopped the willing workers to enter the factory premises and instigated strike, used abusive
language against the officials of respondent company. He also denied that he along-with other
petitioners created atmosphere of fear and lawlessness and had not allowed any worker to perform
the duties. He admitted that the respondent had filed a suit for injunction against him and other
petitioners in the Court of Ld. Civil Judge, Sr. Division Nalagarh, the copy of which is Ex. PR-7.
He expressed his ignorance that Pankaj Jha and Ajay Pandey were also transferred, along-with him,
who have joined their new place of posting. He denied that he was terminated on account of
misconduct being indulged in by him.
6720
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
9. The petitioner Shri Sanjay Thakur, appeared into the witness box as PW-3 and
tendered his affidavit Ex. PW-3/A in examination-in-chief, wherein he also deposed to the similar
effect as deposed by PW-1 & PW-2 including that he had been given appointment by the
respondent company in December, 2005 as wireman and worked as such till July, 2009 on monthly
salary of Rs. 4,400/-. In the cross-examination he admitted that he was regularized on 1.3.2007.
The copy of chargesheet dated 7.7.2009 is Ex. PW-3/B. He denied that show cause notice Ex. PW-
3/C dated 17.6.2009 regarding less production and wrongful rejection inventor pieces, had been
issued to him. He admitted that vide letter Ex. PW-3/D dated 10.7.2009, he had filed reply to
chargesheet and show cause notice. He admitted that he was transferred from Baddi vide letter
dated 23.7.2009, Ex. PW-3/F. He also admitted that letter Ex. PW-3/D had been written by him in
his hand. He further admitted that he had not joined his new place of posting. He denied that on
27.7.2009 he along-with other petitioners had formed a group and threatened the security guards,
Sanjay Kumar, Ramesh and Parvinder. He denied that on 28.7.2009 and 29.7.2009, he along-with
other petitioners forcibly stopped the willing workers to enter the factory premises and instigated
strike, used abusive language against the officials of respondent company. He also denied that he
along-with other petitioners created atmosphere of fear and lawlessness and had not allowed any
worker to perform the duties. He admitted that the respondent had filed a suit for injunction against
him and other petitioners in the Court of Ld. Civil Judge, Sr. Division Nalagarh, the copy of which
is Ex. PR-7. He expressed his ignorance that Pankaj Jha and Ajay Pandey were also transferred,
along-with him, who have joined their new place of posting. He denied that he was terminated on
account of misconduct being indulged in by him.
10. PW-4 Shri Rajesh Kumar (petitioner) has also tendered his affidavit Ex. PW-4/A in
examination-in-chief wherein he also supported all the material facts as deposed by PW-1 to PW-3
including that he had been given appointment by the respondent company as Testing Engineer, in
November, 2005 on monthly salary of Rs. 5500/- and worked as such till July, 2009. In cross-
examination, he admitted that vide Ex. RW-1/A he had field reply to chargesheet and show cause
notice. He denied that he was appointed on 1.3.2007. He denied that on 27.7.2009 at about 1:00PM,
he along-with other petitioners forcibly stopped the willing workers to enter the factory premises
and instigated strike, used abusive language against the officials of respondent company. He also
denied that he along-with other petitioners created atmosphere of fear and lawlessness and had not
allowed any worker to perform the duties. He expressed his ignorance that Pankaj Jha and Ajay
Pandey were also transferred, along-with him, who have joined their new place of posting. He
denied that he was terminated on account of misconduct being indulged in by him.
11. The petitioner Shri Rajeev Kumar appeared into the witness box as PW-5 and tendered
his affidavit Ex. PW-5/A in examination-in-chief wherein he has stated that he was given
appointment by the respondent in April, 2005 as senior technician on monthly salary of Rs. 5,600/-
and worked as such till April, 2009. In cross-examination, he admitted that vide Ex. RW-5/A he
had field reply to chargesheet and show cause notice. He denied that he was appointed on 1.8.2006.
He further denied that on 27.7.2009 at about 1:00PM, he along-with other petitioners forcibly
stopped the willing workers to enter the factory premises and instigated strike, used abusive
language against the officials of respondent company. He also denied that he along-with other
petitioners created atmosphere of fear and lawlessness and had not allowed any worker to perform
the duties. He expressed his ignorance that Pankaj Jha and Ajay Pandey were also transferred,
alongwith him, who have joined their new place of posting. He denied that he was terminated on
account of misconduct being indulged in by him.
12. The petitioner Shri Rakesh Kumar has tendered his affidavit Ex. PW-6/A in
examination-in-chief while appearing into the witness box as PW-6 wherein he has stated that he
was given appointment by the respondent in March, 2005 as Quality Check Controller on monthly
salary of Rs. 5500/- and worked as such till July, 2009. In cross-examination, he denied that he was
6721
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
appointed on 1.6.2005. He denied that on 27.7.2009 at about 1:00PM, he along-with other
petitioners forcibly stopped the willing workers to enter the factory premises and instigated strike,
used abusive language against the officials of respondent company. He also denied that he along-
with other petitioners created atmosphere of fear and lawlessness and had not allowed any worker
to perform the duties. He expressed his ignorance that Pankaj Jhaa and Ajay Pandey were also
transferred, along-with him, who have joined their new place of posting. He denied that he was
terminated on account of misconduct being indulged in by him.
13. In rebuttal the respondent has examined five witnesses in all. RW-1 Shri Parmeshwar
Prasad Singh has tendered his affidavit in examination-in-chief Ex. RW-1/A wherein he has
supported all the contents of reply filed by the respondent including that all the petitioners had been
employed at the inverter division of the respondent situated at Baddi, HP and as per the business
need/exigencies, in the month of July, 2009, S/Shri Rakesh Kumar, Rajeev Kumar, Sanjeev Kumar,
Sanjay Thakur, Sunil Kumar, Ajay Pandey and Prakash Jhaa had been transferred from Baddi to
various locations around Dehli/NCR, Jaipur and Agra besides protecting the existing service
conditions and service benefits/compensation and all the transferred employees had also been given
upfront hike in their salary as displacement allowance. He further deposed that out of seven
transferred employees, only two employees namely Ajay Pandey and Prakash Jha joined the place
of transfer at Gurgaon. The remaining five transferred employees, as aforesaid, had not joined at
transferred place and adopted unconstructive approach towards their transfer and refused to receive
their transfer orders and started creating ruckus in the factory premises. Since, the transferred
employees had not been permitted to continue work at factory, they along-with suspended
workman Shri Rajesh Kumar made forcible entry in the premises and manhandled the security
personnel and hurled filthy abuses. On account of such act, the production suffered drastically and
the respondent could not meet the production target for 27.7.2009. The strike continued till 30th
July, 2009 and thus keeping in view the menace created in such short span of time, the continuation
in employment of petitioners was found highly detrimental to the industrial enterprises and as such
the services of the petitioners were dispensed with. He also tendered in evidence the copy of Board
resolution of Sukam Power System Ltd., Ex. RW-1/B, copies of termination letters along-with the
cheques of full & final dues sent to the petitioners Ex. RW-1/C to Ex. RW-1/H, copies of show
cause notice/reminder/chargesheet issued to the petitioner Shri Rajesh Kumar, Ex. RW-1/L-1 to Ex.
RW-1/L-3, copies of show cause notice/reminder/chargesheet issued to the petitioner Shri Rajeev
Kumar, Ex. RW-1/M-1 to Ex. RW-1/M-3, the copy of reminder to show cause issued to the
petitioner Shri Sanjeev Kumar, Ex. RW-1/N, the copy of letter dated 23.6.2009 issued to petitioner
Shri Sanjay Thakur, Ex. RW-1/O, copies of show cause notice and reminder sent to petitioner Sunil
Kumar Ex, RW-1/P-1 and Ex. RW-1/P-2, the copy of show cause notice issued to the petitioner
Shri Rakesh Kumar, Ex. RW-1/Q, copy for transfer letters issued to Rakesh Kumar, Ex. RW-1/R-1,
Rajeev Kumar Ex. RW-1/R-2 and Sanjeev Kumar Ex. RW-1/R-3. This witness further deposed that
he is conversant with the signatures of Mr. Manoj Goel & Vipul Jain as he had worked with them.
The copies of letters dated 27.7.2009, 28.7.2009, 29.7.2009, 16.6.2009, 30.7.2009, 1.8.2009 (two
letters), 3.8.2009 (three letters), and 4.8.2009, which had been signed by Mr. Manoj Goel/Vipul
Jain are Ex. RW-1/S-1 to Ex. RW-1/S-11. Ex. RW-1/S-12 is the copy of letter dated 3.8.2009
written to SHO Baddi. The detail of transferred workers signed by Mr. Manoj Goel is Ex. RW-1/T
and the detail of technical competence of transferred employees is Ex. RW-1/P-2. The details of
employees sent to Gurgaon unit for training is Ex. RW-1/P-3. In the cross-examination, he has
stated that on 23rd July, 2009, the company tried to give the transfer letter to all the petitioners
except one Shri Rakesh Kumar in the premises of the company but they refused to take transfer
letters. He denied that the transfer letters along-with full & final dues had been sent to the
petitioners intentionally at their permanent address. He also denied that the company had not made
known to the petitioners about the transfer policy at the time of their appointment. He denied that
6722
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
the petitioners had not gone on strike on the ground of their transfer. He denied that the petitioners
were intentionally and deliberately dismissed from service.
14. Shri P.C Shukla, (RW-2) has deposed that he joined as Assistant Manager with the
respondent company at unit no. 6467, Baddi on 19.11.2007 and he knows Shri Sanjay Kumar, who
was Production Engineer and Tarsem Kumar, line leader and also recognized their signatures in red
circle at point E on Ex. RW-2/B. Ex. RW-2/C is the production report which has been prepared by
him. He also recognized the signatures of Shri Sanjay Kumar on Ex. RW-2/E and Shri Sachin Bajaj
on Ex. RW-2/F. In the cross-examination, he stated that during the period of strike, the production
level came down by 90% but the production percentage is not shown in production report Ex. RW-
3/C.
15. RW-3, Shri Pankaj Jaswal, has stated that the show cause notice/reminder/chargesheet
issued to Rajesh Kumar, Ex. RW-1/L to Ex. RW-1/L-3, show cause notice/remainder/ chargesheet
issued
to
Rajeev
Kumar
Ex.
RW-1/M-1
to
Ex.
RW-1/M-3,
show
cause
notice
/remainder/chargesheet issued to Sanjeev Kumar Ex. PW-2/C, Ex. PW-2/B, Ex. RW-1/N and Ex.
RW-1/R-3, show cause notice/ remainder/chargesheet issued to Sanjay Kumar Ex. PW- 3/C, RW-
1/O and Ex. PW-3/F and the show cause notice/remainder/chargesheet issued to Sunil Kumar Ex.
RW-1/P-2, Ex. RW-1/P-1, Ex. PR-1 and Ex. PR-3, had been refused by them in his (RW-3)
presence and he had put the endorsement and signed the same. In the cross-examination, he denied
that the notices/reminders/chargesheets/transfers orders had not been refused to be accepted by the
petitioners in his presence.
16. RW-4 Shri Sunil Kumar, Senior Assistant, O/o Labour Commissioner Shimla has
deposed on the basis of record that vide Ex. RW-4/A and Ex. RW-4/B, the conciliation proceedings
dated 10.8.2009 and 13.8.2009 had been conducted by the Joint Labour Commissioner, Shimla
between workers and the management. Ex. RW-4/C is the order of Labour Commissioner
prohibiting the strike in the respondent company and standing orders of the company is Ex. RW-
4/D. The copy of letter dated 3rd August, 2009 is Ex. RW-4/E and the copy of this letter had also
been received by the Labour Commissioner vide Ex. RW-4/F. Ex. RW-4/G is the letter dated 13th
August, 2009 written by the respondent to Labour Commissioner’s office.
17. RW-5 Shri S.S Bisht, Labour Inspector, Baddi has stated that Ex. RW-5/A is the letter
dated 28.7.2009 and Ex. RW-5/B is the conciliation dated 29.7.2009 between workers and
respondents. Ex. RW-5/C is the conciliation notice dated 5.8.2009 and failure report under section
12 (4) of the I.D Act is Ex. RW-5/D.
18. Besides having heard the learned counsel for the parties, I, have also gone through the
record of the case carefully.
19. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under:
Issue no. 1. No.
Issue no. 2.
No.
Issue no. 3.
Yes.
Issue no. 4. Entitled to lump sum compensation.
Issue no. 5.
No.
Issue no.5-A Yes.
6723
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Relief.
Reference partly allowed in favour of petitioners per operative part of award.
REASONS FOR FINDINGS
Issue no. 1
20. Learned counsel for the petitioner contended that the petitioners have been transferred
to the different branches of the respondent company out-side the State of Himachal Pradesh in a
malafide manner whereas the learned counsel for the respondent contended that the petitioners have
been transferred from Baddi plant to various locations as per the business need and such transfers
have always been a routine affair and there was no malafide intention on the part of the respondent
in transferring the petitioners.
21. I have gone through the respective contentions of the learned counsel for the parties
and also closely scrutinized the entire evidence, on record, and from the closer scrutiny thereof, it
has become clear that all the petitioners were employed at the inverter division of respondent
situated at Baddi and all of them were the residents of Himachal Pradesh. On 23rd July, 2009, all
the petitioners except Rajesh Kumar were transferred to various locations out-side the state of
Himachal Pradesh. Ex. RW-5/D, is the transfer letter issued to petitioner Rajeev Kumar wherein he
was ordered to be transferred from Inverter Plant Baddi to Service Department, New Delhi. Ex. PR-
3, is the transfer letter issued to petitioner Shri Sunil Kumar, who was ordered to be transferred
from Inverter Plant Baddi to Service Department Jaipur. Ex. RW-1/R-1, and Ex. RW-2/F are the
transfer letters issued to petitioners Shri Rakesh Kumar and Shri Sanjeev Kumar, who were ordered
to be transferred from Baddi to Plot no. 196-C Industrial Vihar, Phase-6, Gurgaon and Vide Ex.
PW-3/R, petitioner Shri Sanjay Kumar was ordered to be transferred from Baddi to TRC Centre
Gurgaon. It is the admitted case of the petitioners that they did not join at the transferred places. It
is also the admitted case of the respondent that at the time of their appointment, no appointment
letters had been issued to the petitioners. The contention of the respondent is to this effect that the
petitioners were transferred as per the certified standing orders Ex. RW-4/D. Clause 4.1.3 of the
certified standing orders provides that every employees shall be given a letter of appointment, in
the prescribed form stating briefly the terms and conditions of such appointment. However, if for
any reasons, the appointment letter is not given at the time of recruitment or joining, the
management shall have right to issue the appointment letter even at later stage. At the same time
when regard is given to cross-examination of RW-1 Shri Parmeshwar Parsad he has admitted that
the petitioners were not given the letters of appointment. Clause 19 of the Certified Standing orders
Ex. RW-4/D, provides for the transfers of the employees and clause 19.1, reads as under:
“As per the business exigency, employee shall be liable to be transferred from one post,
department, section, unit, office, branch or factory, to another belonging to or
managed/operated by the same company/management or any of its associates, whether
existing or whether coming into existence/acquired subsequent to the appointment.”
It is well established that the standing orders have the force of law and the same constitute
statutory terms of employment. From the perusal of standing orders Ex. RW-4/D, it is clear that the
employees shall be liable to be transferred as per the business exigencies. It is a settled position of
law that the transfer of an employee is an incidence of service and is a matter of internal
management of the company. In (2004) 3 SCC 172, titled as Pearlite Liners (P) Ltd Vs.
Manorama Sirsi, it has been held by the Hon’ble Apex Court that unless there is a term to the
contrary in the contract of service, a transfer order is a normal incidence of service. The Hon’ble
Apex Court has held as under:
6724
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
“Unless there is a term to the contrary in the contract of service, a transfer order is a normal
incidence of service. The plaintiff has neither pleaded nor has there been any effort on her
part to show that the impugned transfer order was in violation of any term of her
employment. In the absence of a term prohibiting transfer of the employee, prima facie the
transfer order cannot be called into question”.
22. In the present case it has been stated in the petition that the respondent has transferred
the petitioners out-side the State with malafide intention. However, no evidence had been led by the
petitioners in this respect to prove malafide on the part of the respondent. When regard is given to
the evidence of the petitioners, it may be pertinent to mention here that the petitioners Sunil Kumar
(PW-1), Sanjeev Kumar (PW-2) and Sanjay Thakur (PW-3) had not uttered even a single word in
their affidavits which have been filed by way of evidence regarding the alleged malafide transfers.
Though, PW-5 Shri Rajeev Kumar and PW-6 Shri Rakesh Kumar have averred in their affidavits,
filed by way of evidence, that the respondent transferred them to settle the scores, however, to
prove their such allegations, except for their bald statements, no other evidence had been led by
them. The petitioners have neither pleaded nor proved that their transfer orders were in violation of
any term of their employment. Therefore, in the absence of any proof of malafide on the part of the
respondent and also in view of the certified standing orders Ex. RW-4/D, it can safely be held that
the transfer of the petitioners was not illegal and unjustified. Accordingly, this issue is decided in
favour of the respondent and against the petitioners.
Issue no. 2.
23. The respondent had placed on record the copies of chargesheet regarding “going slow”
Ex. PR-1, Ex. PW-2/B, Ex. PW-3/B, Ex. RW-1/L-3 to all the petitioners including suspended
petitioner Shri Rajesh Kumar. When regard is given to the affidavit Ex. PW-4/A, filed by petitioner
Rajesh Kumar (PW-4) in his examination-in-chief he categorically stated that in the month of June,
2009, his father suffered heart attack and he had to rush to his native place to look-after his father
and he also informed his head of department. He further stated that when he came back to join his
duties, he was not allowed to resume the same on the pretext that a departmental enquiry would be
initiated against him. He was suspended by means of letter dated 16.7.2009 w.e.f. 17.7.2009 till the
completion of the proceedings of domestic enquiry and was also ordered to be paid subsistence
allowance. However, no evidence has been led by Rajesh Kumar in order to prove that he was
suspended in an illegal and unjustified manner by the respondent. Even, in his affidavit by way of
evidence he has not uttered even a single word about this aspect of the matter. Therefore, in the
absence of any evidence on record, it cannot be said that the petitioner Shri Rajesh Kumar was
suspended in an illegal and unjustified manner. Hence, this issue is answered in favour of the
respondent and against the petitioner Shri Rajesh Kumar.
Issues no. 3 & 5-A.
24. The learned counsel for the petitioners contended that the petitioners had been wrongly
terminated by the respondent without holding any enquiry and without giving any opportunity of
being heard to them and the management of the company had already made up their mind to throw
them out of the employment.
25. Conversely, the case of the respondent is that the five transferred workmen along-with
suspended workman Shri Rajesh Kumar started indulging in pressure tactics to avoid their transfers
and started ruckus in the factory premises and they also started stopping the workmen to enter in
the factory and also instigated the workmen to go on strike and resultantly around eighty workmen
abstained from work and joined the illegal strike which continued till 30.7.2009. The further case of
6725
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
the respondent is that the acts committed by the petitioners are very grave and keeping in view the
major misconduct, the services of all the petitioners were terminated on 30.7.2009 without
conducting any domestic enquiry as the same was not practically possible at that point of time and
a detailed order was issued containing the circumstances leading to the decision of dismissal.
26. From the perusal of record, it has become clear that all the petitioners were dismissed
from service on 30.7.2009 without holding any domestic enquiry as admitted by the respondent.
Now, the question which arises for consideration before this Court is as to whether the action of the
respondent was illegal and unjustified in terminating the services of the petitioners without holding
the domestic enquiry and without following the principles of natural justice on the ground of the
major misconduct. It is a settled legal proposition that a workman against whom the misconduct is
alleged cannot be dismissed unless a proper domestic enquiry is held against him in respect of the
alleged misconduct. Even, if the alleged misconduct is proved against the workman, he cannot be
discharged or dismissed from service unless he has been afforded opportunity of being heard before
initiating any action against him by the employer/respondent. The certified standing orders of the
respondent Ex. RW-4/D also provides for conducting of the enquiry for misconduct. Clause 31 of
the aforesaid standing orders provides for the procedure for dealing with the cases of misconduct
and disciplinary proceedings. It has been specifically provided therein that in normal circumstances
no order for punishment shall be passed unless, the concerned employee is given an opportunity to
submit his explanation in writing in respect of the charges of misconduct alleged against him.
Clause 31.1 to 31.5 of certified standing orders are reproduced as under:
“31.1 An employee against whom misconduct is alleged shall be given a charge sheet
personally, through the authorized management representative, clearly setting forth briefly
the fact and the circumstances alleged against him, the nature of the misconduct and
requiring his explanation. The chargesheeted employee shall be given minimum 48 hours
time to submit his explanation to the chargesheet. If the employee refuses to accept the
charge sheet, it shall be pasted on the notice board or a copy of the same shall be sent at the
available address of the employee through registered/speed post and it shall be deemed to
have been served upon him.
31.2 The manager upon receiving such explanation shall consider the same and proceed
accordingly. No formal enquiry shall however, be necessary, if the explanation is found
satisfactory or when the employee expressly admits the charges, the management or the
manager may award any one of the punishment provided in clause-30 without holding any
enquiry. However, if the charge sheeted employee admits only one or some of the charges
leveled against him, the enquiry would be held in respect of the charges not admitted by the
employee.
31.3. In case the employee fails to submit his explanation within the prescribed time or
extended time allowed to him, is shall be presumed that he employee accept the charges and
has nothing to say on his part against the charges alleged against him and the management
shall award appropriate punishment provided in clause 30 without holding any enquiry.
31.4. If the explanation was not found satisfactory, a domestic enquiry shall be conducted to
ascertain the charges and to provide opportunity of hearing to the concerned employee. In
case the alleged acts of misconduct involve several employees, management may constitute
a joint enquiry against such employees.
31.5. Adequate and reasonable opportunity, observing the principles of natural justice will
be given to the employee by holding a domestic enquiry according to the following
procedure.
6726
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
However, in the present case admittedly neither any show cause notice nor any chargesheet
was issued to the petitioners before terminating them from service. No explanation was called for
from the petitioners and no domestic enquiry was conducted to ascertain the charges and to provide
the opportunity of being heard to the petitioners in flagrant violation of the principles of natural
justice.
27. There can be no dispute about the fact that the respondent is entitled to lead evidence
on merits before this Court to prove the misconduct of the petitioners in case their dismissal is
found to be in violation of the principles of natural justice. In (2006)-6 S.C.C 325, titled as Amritt
Vanaspati Co. Ltd. Vs. Khem Chand and another, it has been held by the Hon’ble Apex Court
that even if no enquiry has been held by the employer or the enquiry held is found to be defective,
the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an
opportunity to the employer and the employee to adduce evidence before it. During the pendency of
the proceedings before this Court, an application under order 6 rule 17 read with section 151 CPC
was filed by the respondent and a plea was taken that if the Industrial Tribunal-cum-Labour Court
is of the view that the dismissal of the petitioners was in violation of the principles of natural
justice, fair hearing or without enquiry, then the respondent be allowed to lead evidence on merits
before this Court in order to prove the misconduct against the non-applicants. The aforesaid
application was allowed by this Court vide order dated 4.6.2014. Thereafter, both the parties were
given opportunities to lead evidence and both the parties had adduced evidence before this Court.
28. Now, the next question which arises for consideration before this Court is as to
whether the alleged misconduct has been proved against the petitioners or not. It is the admitted
case of the respondent that no enquiry was conducted before terminating the services of the
petitioners. The perusal of the record makes it clear that Ex. RW-1/F is the termination letter issued
to petitioner Shri Sanjeev Kumar, Ex. RW-1/D is the termination letter issued to petitioner Shri
Rajeev Kumar, Ex. RW-1/G, is the termination letter issued to petitioner Shri Sanjay Kumar, Ex.
RW-1/E is the termination letter issued to petitioner Shri Rakesh Kumar, Ex. RW-1/H is the
termination letter issued to petitioner Shri Sunil Kumar and Ex. RW-4/D, is the termination letter
issued to petitioner Shri Rajesh Kumar. The grounds as mentioned in the aforesaid termination
letters are almost common and are summarized as follows:
1. That the petitioners had violated the orders of the management and misbehaved with
their superiors and also created ruckus, indiscipline and anarchy in the premises as a
result of which the company had suffered loss of about Rs. 2.25 crore
2. That on 23.7.2009, all the petitioners were transferred but they have refused to accept
the transfer letters in the presence of Pankaj Jaswal and Chander Negi.
3. That on 27.7.2009, they entered forcibly into the premises of the company at 8:30 AM
and when the security personnel Shri S.S Chandel had told them to report at transferred
places then they started quarreling with him and also manhandled Assistant Security
Officer as well as security personnel S/Shri Sanjay Kumar, Ramesh and Parvinder and
threatened them they would be done to death.
4. They started roaming in the factory premises of the factory and misbehaved with Shri
Sachin Bajaj, the departmental head but Shri Chander Negi intervened and that after
lunch hours they again entered the premises of the factory along-with suspended
workmen Shri Rajesh Kumar and started instigating the other workers as a result of
which the company suffered losses and the rate of production fell down.
6727
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
5. That on 28.7.2009, they entered the factory premises and stopped the wiling workers at
the gate and started raising slogans and abusing the senior managers in the name of
mother and sister and as a result of the illegal strike the company suffered losses and
the rate of production fell down.
6. That on 29.7.2009, at about 7:30 AM, all the petitioners had made forcible entry into
the premises of factory and threatened the electricians, security personnel and other
employees and stopped them to do work as a result of which the Police had to be called
and at that time Mr. Deepak, Dinesh and Vijender Chandel were also present and due
to the acts of the petitioners about 80-85 workers remained on strike.
7. That on 30.7.2009, also all the petitioners instigated 80-85 workers who continued to
remain on illegal strike and also threatened the other workers as well as the visitors in
the presence of security personnel and Vijender Chandel.
8. That the company suffered financial losses and loss in the production on 27th , 28th
and 29th July, 2009.
9. That in past also they were involved in such illegal activities and on 7.7.2009, the
company issued them show cause notice for going slow for which a chargesheet was
also issued to them and on 10.7.2009, they had admitted all the charges and also gave
apology which was accepted by the management.
29. However, to prove the aforesaid grounds of termination, the respondent examined RW-
1 Shri Parmeshwar Prasad, Sr. Manager (L&S), who in his affidavit Ex. RW-1/A deposed that the
five transferred employees started indulging in nefarious pressure tactics to avoid their transfers
and along-with suspended workman Shri Rakesh Kumar started creating ruckus in the factory
premises. He further deposed that in the morning of 27.7.2009, they made forced entry in the
factory premises and manhandled the security personnel in the factory and hurled filthy abuses and
after lunch on that day the transferred employees along-with suspended employee started roaming
inside the factory and coercing other working employee to stop production and misbehaved with
Managers/Supervisors. He also deposed that on 28.7.2009, they gathered at the factory gate before
the start of the general shift and started shouting slogans and hurled highly dirty abuses in the name
of mother and sister to the senior officers of the respondent and stopped the workmen from entering
the factory and induced them to proceed on strike and resultantly around eighty workmen abstained
from work and joined the strike instigated by the petitioners which continued for the next two days
on 29th and 30th July, 2009 and in these two days their height of misconduct reached its hilt. He
also deposed that on 29.7.2009, the petitioners targeted the technicians, staff members and willing
workmen and threatened them openly. He also stated that since the acts committed by the
petitioners were very grave, the respondent dismissed their services without conducting domestic
enquiry as it was not practically feasible at that point of time keeping in view the imminent danger
to life and limbs of the personnel of respondent.
30. It is pertinent to mention here that except for the bald statement of RW-1, no other
witness has been examined by the respondent to prove the aforesaid misconduct against the
petitioners. The statement of RW-1 has not been supported by any other witness and had gone
uncorroborated. No worker has been examined by the respondent to prove that the petitioners
created ruckus, indiscipline and anarchy in the factory premises. No security personnel was
examined by the company in order to prove that they were manhandled by the petitioners. No
senior official has stepped into the witness box in order to prove that the petitioners hurled abuses
to them and misbehaved with them. Neither Sachin Bajaj nor Chander Negi and Vijender Chandel
6728
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
had stepped into the witness box in order to support the case of the respondent. Similarly, S/Shri
Sanjay Kumar, Ramesh and Parvinder also failed to appear in the witness box to state that they
were manhandled and threatened by the petitioners. At this stage, I would like to point out that the
best evidence which the respondent was required to adduce before this Court could have been the
workers/officers/security personnel’s with whom the petitioners have allegedly misbehaved but no
such evidence had been brought before this Court by the respondent. Though, the respondent
examined RW-2 Shri P.C Shukla, Assistant Manager, in order to prove the production report Ex.
RW-2/C, but if his statement is pursued then he has only stated that there was a down fall in the
production w.e.f. 5.6.2009 to 16.6.2009. However, no evidence has been led by the respondent on
record to show that the production level came down during the period of strike and the company
suffered losses of Rs. 2.25 crore. In cross-examination, RW-2 admitted that the strike commenced
from the last week of July, 2009 and during this period the production level came down by 80% to
90%. However, at the same time he admitted in the cross-examination that the percentage of
production level has not been shown in the production report Ex. RW-2/C. Admittedly, no
production report has been placed on record qua reduction in production after 16.6.2009 as
admitted by RW-2 in his cross-examination. Therefore, in the absence of any evidence on this
aspect of the matter it cannot be said that there was a down fall in the production and the company
suffered losses due to strike. RW-3 Shri Pankaj Jaswal had only stated that the show cause
notice/reminder/chargesheet issued to the petitioners were refused to be accepted by them in his
presence and except that he had not uttered even a single word about creation of ruckus by the
petitioners in the factory premises and about their violent behavior. No other evidence has been led
by the respondent to prove the alleged major misconduct against the petitioners as mentioned in the
termination letters.
31. Therefore, in view of the fact that neither any domestic enquiry was conducted against
the petitioners nor the major misconduct has been proved before this Court by the respondent, it
can safely be held that the dismissal of the petitioners was illegal and unjustified, hence, both these
issues are decided accordingly.
Issue no. 5
32. Now, the next question which arises for consideration before this Court is as to
whether the strike resorted to by the workmen was legal or illegal. Admittedly, there was a strike
resorted by the workmen of the respondent company which was prohibited by the Labour
Commissioner vide order dated 13.8.2009, Ex. RW-4/C, wherein it has been mentioned that due to
adamant attitude of both the parties, the dispute could not be settled. It has been admitted by the
petitioners in their petition that the workers were on strike to fulfill their demands and were sitting
out-side the factory gate and demonstrating their agitation peacefully. As per the certified standing
orders Ex. RW-4/D vide its clause 25.1, it has been mentioned that the employees shall not go on
strike without giving fourteen days’ notice or in contravention with the provisions provided under
the Industrial Disputes Act, 1947. It has also been provided therein that the employees in the event
of any grievance, shall first try to resolve the same by mutual negotiations and the machinery
provided under these standing orders. But the petitioners have failed to prove on record that they
have gone on strike after giving fourteen days notice to the management. It is the admitted case of
the parties that all the petitioners except suspended petitioner Shri Rajesh Kumar were transferred
out of State of Himachal Pradesh and they were aggrieved by the transfer orders. However, there is
no material whatsoever placed on record to suggest that at any point of time before going on strike
they tried to resolve the matter by mutual negotiations as provided in the standing orders.
Therefore, keeping in view the entire evidence on record and also the standing orders of the
company, it cannot be said that the strike resorted to by the petitioners was legal. Since, the strike
was illegal and unjustified, therefore, the petitioners are not entitled to wages for the period of
6729
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
strike and as per standing orders, the respondent is entitled for deduction of their wages
proportionally on the basis of “no work, no pay” as per clause 25.4 of the Standing orders.
Accordingly, this issue is answered in favour of the respondent and against the petitioners.
Issue no. 4
33. Since, I have held under issues no. 3 & 5-A, that the dismissal of the petitioners along-
with suspended workman Shri Rajesh Kumar on the ground of major misconduct is not legal and
justified, hence, the question arises as to what service benefits, the petitioners are entitled. It is by
now well settled that if the termination of employee is found to be illegal, the relief by way of
reinstatement with back-wages is not automatic. The Hon’ble Supreme Court in Santosh Kumar
Seal and others reported in 2010 LLR 677: 2010 III CLR 17 SC, has held that relief by way of
reinstatement with back wages is not automatic even if termination of an employee is found to be
illegal or is in contravention of the prescribed procedure and that mandatory compensation in lieu
of reinstatement and back wages in cases of such nature may be appropriate.
34. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC
327, the Hon’ble Supreme Court has held that:
“It is true that the earlier view of this Court articulated in many decisions reflected the legal
position that if the termination of an employee was found to be illegal, the relief of
reinstatement with full back wages would ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a long line of cases, this Court has consistently
taken the view that relief by way of reinstatement with back wages is not automatic and
maybe wholly inappropriate in a given fact situation even though the termination of an
employee is in contravention of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice."
35. In the present case, even though the termination of the petitioners is held to be illegal
but their reinstatement will not be appropriate relief as in view of the allegations and counter
allegations there had been a bad blood between the parties. The perusal of the material on record
shows that there had been strained relations between the petitioners and respondent as earlier five
petitioners were transferred out-side the state of Himachal Pradesh and one of the petitioners Shri
Rajesh Kumar was suspended and thereafter they resorted to an illegal strike, therefore, in such a
situation, it would not be appropriate to make the order of reinstatement in the present case. Hence,
taking into account all the facts and circumstances of the case, the ends of justice would be met, if
the lump sum compensation in lieu of reinstatement and back-wages is awarded to the petitioners.
36. It is not disputed that the petitioners were the regular and confirmed employees of the
respondent company and their services were of permanent charcter. Therefore, in my view the
petitioners are entitled to receive a suitable, appropriate, just and equitable compensation from the
respondent and it would be quite reasonable and justified if lump sum compensation of Rs.
3,00,000/- (three lakhs only) is awarded to each of the petitioners instead of reinstatement.
Consequently, this issue is decided in favour of the petitioners.
Relief
As a sequel to my findings on the aforesaid issues, the claim of the petitioners is partly
allowed and as such the respondent is directed to pay Rs. 3,00,000/- (Rs. three lakh only), as lump
sum compensation to each petitioner within three months from today failing which the same shall
carry interest @ 9% per annum from the date of publication of this award. The reference is
6730
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
answered accordingly. Let a copy of this award be sent to the appropriate government for
publication in official gazette. File, after completion be consigned to records.
Announced in the open court today on this 9th day of November, 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
71 of 2013.
Instituted on
:
22.10.2013.
Decided on
:
20.11.2015.
Shyam Singh S/o late Shri Sher Singh R/o Village Neri, P.O Barog, Tehsil Theog, District
Shimla, HP.
…Petitioner.
Vs.
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
…Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947
For petitioner
: Shri T.S. Chauhan, Advocate.
For respondent
: Shri Balwant Singh Thakur, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Shyam Singh S/o Shri Sher Singh R/o
village Neri, P.O Barog, Tehsil Theog, District Shimla HP who was employed as mess
helper w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of Horticulture
and Forestry Nauni, District Solan, HP 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 from which date the above worker is
entitled to from the above employer?”
2. In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
6731
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 2.6.2006 and completed 240 days in each calendar year without
any break. The respondent is a university and creation of statute and is governed by statute and it is
the statutory liability of the university to maintain the hostel. The canteen is an integral part of the
hostel. It is also stated that initially the contract was entered by the petitioner with the university for
one year and thereafter the respondent continued the service without the contract and the petitioner
used to work on daily wages. On 15.4.2011, the respondent orally terminated the services of the
petitioner without issuing any show cause notice and the provisions of the Industrial Disputes Act,
1947 (hereinafter referred to as Act) had not been complied with and the persons who are junior to
him are continuing in service. The services of the petitioner had been terminated without following
the due process of law as no opportunity of being heard was afforded to him and the petitioner is
unemployed after his termination. The last drawn wages of the petitioner was Rs. 3500/- per month.
Against this back-drop a prayer for re-instatement along-with all consequential benefits including
back-wages has been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged? ...OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
. . .OPP.
3. Whether this petition is not maintainable in view of preliminary objections?
. . .OPR.
4. Relief.
6.
Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
6732
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Issue no. 1 Yes.
Issue no. 2 Entitled to reinstatement with seniority and continuity but without back-wages
Issue no. 3 No.
Relief. Reference answered in favour of the petitioner and against the respondent per
operative part of award.
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
mess helper by the respondent after completing selection process. He further contended that the
services of the petitioner had been terminated by the respondent illegally without serving any notice
as required under section 25-F of the Act as he had completed 240 working days in each calendar
year and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 2.6.2007 as mess helper vide appointment letter mark X and he used to live in
hostel. There were nine hostels and nine messes at university campus and students were also living
in the hostels. He further stated that the messes used to run throughout the year and he was working
there as a mess helper from 2.6.2007 to 15.4.2011. No notice had been issued to him before his
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the petitioner
had been appointed as mess helper on 26.5.2007 as per Ex. PW-2/A and at present there are twelve
hostels in the respondent university. There are separate messes for each hostel and the mess used to
run semester wise and after the completion of semester, the mess remain closed for two months. No
notice before terminating the services of the petitioner had been given as his services had been
engaged for a short period as per the requirement of work. The petitioner had worked w.e.f. June,
2007 till June, 2009 as per Ex. PW-2/B. After the termination of the services of the petitioner other
workers have been engaged in the mess. The messes in the university are permanent in nature. The
petitioner was getting Rs. 1400/- per month as salary. In cross examination, he admitted that the
petitioner was engaged in the mess on cooperative basis for specific period. He also admitted that
6733
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
the petitioner was being paid the wages out of the money collected by the students and at present
the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as mess helper by the respondent vide
letter Ex. PW-2/A and worked as such w.e.f. June, 2007 till June, 2009 as per year wise detail of
days Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked with
the respondent till 15.4.2011 but when regard is given to entire evidence on record except the bald
statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 197 days in the year, 2007, 289 days in the year, 2008 and 150 days
in the year, 2009. There is nothing on record which could go to show that the petitioner had
completed 240 working days in twelve calendar months preceding his termination. It is by now
well settled that the burden of proof lies on the workman to show that he had worked continuously
for 240 days in twelve calendar months preceding his termination. In 2009 (120) FLR 1007 in case
titled as Relip Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court
has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:—
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
6734
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
reason. In the present case the petitioner has proved on record by examining PW-2 Shri
PapinderKumar, Clerk that after his termination, other workers have been engaged in the mess.
This witness (PW-2) has categorically stated that after the termination of the petitioner, other
workers have been engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram
Sweta, Superintendent in his cross-examination that after the termination of the petitioner fresh
workers had been engaged and no notice was issued to the petitioner before terminating his
services. He further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
19. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
6735
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement.
Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I have
no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly, issue
no.2 is partly decided in favour of the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no. 3 is
decided in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records.
Announced in the open Court today on this 20th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
6736
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
68 of 2013.
Instituted on.
:
1.10.2013.
Decided on
:
20.11.2015.
Rajesh Singh S/o Shri Hira Singh R/o Village Bagri, P.O Chella, Tehsil Theog, District
Shimla, HP.
. . .Petitioner.
Vs.
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri T.S Chauhan, Advocate.
For respondent : Shri Balwant Singh Thakur, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Rajesh Singh S/o Shri Hira Singh R/o
Village Bagri, P.O Chella, Tehsil Theog, District Shimla, HP who was employed as
mess helper w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of
Horticulture and Forestry Nauni, District Solan, HP 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 from which date the above worker is
entitled to from the above employer?”
2.
In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 1st September, 2007 and completed 240 days in each calendar
year without any break. The respondent is a university and creation of statute and is governed by
statute and it is the statutory liability of the university to maintain the hostel. The canteen is an
integral part of the hostel. It is also stated that initially the contract was entered by the petitioner
with the university for one year and thereafter the respondent continued the service without the
contract and the petitioner used to work on daily wages. On 15.4.2011, the respondent orally
terminated the services of the petitioner without issuing any show cause notice and the provisions
of the Industrial Disputes Act, 1947 (hereinafter referred to as Act) had not been complied with and
the persons who are junior to him are continuing in service. The services of the petitioner had been
terminated without following the due process of law as no opportunity of being heard was afforded
to him and the petitioner is unemployed after his termination. The last drawn wages of the
6737
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
petitioner was Rs. 3500/- per month. Against this back-drop a prayer for re-instatement along-with
all consequential benefits including back-wages has been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged? . . .OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
.
3. Whether this petition is not maintainable in view of preliminary objections?
. . .OPR.
4. Relief.
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no. 2
Entitled to reinstatement with seniority and continuity but without back-
wages.
Issue no. 3
No.
Relief.
Reference answered in favour of the petitioner and against the respondent
per operative part of award.
6738
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
mess helper by the respondent after completing selection process. He further contended that the
services of the petitioner had been terminated by the respondent illegally without serving any notice
as required under section 25-F of the Act as he had completed 240 working days in each calendar
year and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 1.9.2007 as mess helper vide appointment letter mark X and he used to live in
hostel. There were nine hostels and nine messes at university campus and students were also living
in the hostels. He further stated that the messes used to run throughout the year and he was working
there as a mess helper from 1.9.2007 to 15.4.2011. No notice had been issued to him before his
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the petitioner
had been appointed as mess helper on 14.8.2007 as per Ex. PW-2/A and at present there are twelve
hostels in the respondent university. There are separate messes for each hostel and the mess used to
run semester wise and after the completion of semester, the mess remain closed for two months. No
notice before terminating the services of the petitioner had been given as his services had been
engaged for a short period as per the requirement of work. The petitioner had worked w.e.f.
September, 2007 till June, 2009 as per Ex. PW-2/B. After the termination of the services of the
petitioner other workers have been engaged in the mess. The messes in the university are
permanent in nature. The petitioner was getting Rs. 2250/- per month as salary. In cross
examination, he admitted that the petitioner was engaged in the mess on cooperative basis for
specific period. He also admitted that the petitioner was being paid the wages out of the money
collected by the students and at present the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
6739
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as mess helper by the respondent vide
letter Ex. PW-2/A and worked as such w.e.f. September, 2007 till June, 2009 as per year wise detail
of days Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked
with the respondent till 15.4.2011 but when regard is given to entire evidence on record except the
bald statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 120 days in the year, 2007, 285 days in the year, 2008 and 144 days
in the year, 2009. There is nothing on record which could go to show that the petitioner had
completed 240 working days in twelve calendar months preceding his termination. It is by now
well settled that the burden of proof lies on the workman to show that he had worked continuously
for 240 days in twelve calendar months preceding his termination. In 2009 (120) FLR 1007 in case
titled as Relip Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court
has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:-
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
6740
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
reason. In the present case the petitioner has proved on record by examining PW-2 Shri Papinder
Kumar, Clerk that after his termination, other workers have been engaged in the mess. This witness
(PW-2) has categorically stated that after the termination of the petitioner, other workers have been
engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram Sweta,
Superintendent in his cross-examination that after the termination of the petitioner fresh workers
had been engaged and no notice was issued to the petitioner before terminating his services. He
further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
19. Now, the question which arises for consideration, before this Court is as to whether
the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
6741
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of
the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.3 is decided
in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official
gazette. File, after completion, be consigned to records.
Announced in the open Court today on this 20th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
76 of 2013.
Instituted on.
:
5.10.2013.
Decided on
:
20.11.2015.
Ishwar Dyal S/o Shri Sohan Lal R/o Village Kotla Panjola, Tehsil Pachad, District Sirmour,
H. P.
. . .Petitioner.
Vs.
6742
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner
: Shri T.S Chauhan, Advocate.
For respondent
: Shri Balwant Singh Thakur, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Ishwar Dyal S/o Shri Sohan Lal R/o
Village Kotla Panjola, Tehsil Pachad, District Sirmour, HP who was employed as mess
helper w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of Horticulture
and Forestry Nauni, District Solan, HP 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 from which date the above worker is
entitled to from the above employer?”
2. In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 1.9.2007 and completed 240 days in each calendar year without
any break. The respondent is a university and creation of statute and is governed by statute and it is
the statutory liability of the university to maintain the hostel. The canteen is an integral part of the
hostel. It is also stated that initially the contract was entered by the petitioner with the university for
one year and thereafter the respondent continued the service without the contract and the petitioner
used to work on daily wages. On 15.4.2011, the respondent orally terminated the services of the
petitioner without issuing any show cause notice and the provisions of the Industrial Disputes Act,
1947 (hereinafter referred to as Act) had not been complied with and the persons who are junior to
him are continuing in service. The services of the petitioner had been terminated without following
the due process of law as no opportunity of being heard was afforded to him and the petitioner is
unemployed after his termination. The last drawn wages of the petitioner was Rs. 3500/- per month.
Against this back-drop a prayer for re-instatement along-with all consequential benefits including
back-wages has been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
6743
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged?
. . .OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
. . .OPP.
3. Whether this petition is not maintainable in view of preliminary objections?
...OPR.
4. Relief.
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no. 2
Entitled to reinstatement with seniority and continuity but without back-
wages
Issue no. 3
No.
Relief.
Reference answered in favour of the petitioner and against the respondent
per operative part of award.
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
mess helper by the respondent after completing selection process. He further contended that the
services of the petitioner had been terminated by the respondent illegally without serving any notice
as required under section 25-F of the Act as he had completed 240 working days in each calendar
year and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
6744
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 1.9.2007 as mess helper vide appointment letter mark X and he used to live in
hostel. There were nine hostels and nine messes at university campus and students were also living
in the hostels. He further stated that the messes used to run throughout the year and he was working
there as a mess helper from 1.9.2007 to 15.4.2011. No notice had been issued to him before his
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the petitioner
had been appointed as mess helper on 14.8.2007 as per Ex. PW-2/A and at present there are twelve
hostels in the respondent university. There are separate messes for each hostel and the mess used to
run semester wise and after the completion of semester, the mess remain closed for two months. No
notice before terminating the services of the petitioner had been given as his services had been
engaged for a short period as per the requirement of work. The petitioner had worked w.e.f.
September, 2007 till June, 2009 as per Ex. PW-2/B. After the termination of the services of the
petitioner other workers have been engaged in the mess. The messes in the university are
permanent in nature. The petitioner was getting Rs. 1800/- per month as salary. In cross
examination, he admitted that the petitioner was engaged in the mess on cooperative basis for
specific period. He also admitted that the petitioner was being paid the wages out of the money
collected by the students and at present the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as mess helper by the respondent vide
letter Ex. PW-2/A and worked as such w.e.f. Sept. 2007 till June, 2009 as per year wise detail of
days Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked with
the respondent till 15.4.2011 but when regard is given to entire evidence on record except the bald
statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 122 days in the year, 2007, 292 days in the year, 2008 and 146 days
in the year, 2009. There is nothing on record which could go to show that the petitioner had
completed 240 working days in twelve calendar months preceding his termination. It is by now
6745
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
well settled that the burden of proof lies on the workman to show that he had worked continuously
for 240 days in twelve calendar months preceding his termination. In 2009 (120) FLR 1007 in case
titled as Relip Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court
has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:—
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
6746
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
reason. In the present case the petitioner has proved on record by examining PW-2 Shri Papinder
Kumar, Clerk that after his termination, other workers have been engaged in the mess. This witness
(PW-2) has categorically stated that after the termination of the petitioner, other workers have been
engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram Sweta,
Superintendent in his cross-examination that after the termination of the petitioner fresh workers
had been engaged and no notice was issued to the petitioner before terminating his services. He
further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
19. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
6747
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
petitioner is not entitled to any back-wages. Accordingly, issue no. 2 is partly decided in favour of
the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no. 3 is
decided in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records.
Announced in the open Court today on this 20th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
___________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
70 of 2013.
Instituted on
:
1.10.2013.
Decided on
:
20.11.2015.
Hem Raj S/o Shri Chet Ram R/o Village Chawri, P.O Barog, Tehsil Theog, District Shimla,
HP.
. . .Petitioner.
Vs.
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri T.S Chauhan, Advocate.
For respondent : Shri Balwant Singh Thakur, Advocate.
6748
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Hem Raj S/o Shri Chet Ram R/o Village
Chawri, P.O Barog, Tehsil Theog, District Shimla, HP, who was employed as mess
helper w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of Horticulture
and Forestry Nauni, District Solan, HP 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 from which date the above worker is
entitled to from the above employer?”
2. In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 8th March, 2006 and completed 240 days in each calendar year
without any break. The respondent is a university and creation of statute and is governed by statute
and it is the statutory liability of the university to maintain the hostel. The canteen is an integral
part of the hostel. It is also stated that initially the contract was entered by the petitioner with the
university for one year and thereafter the respondent continued the service without the contract and
the petitioner used to work on daily wages. On 15.4.2011, the respondent orally terminated the
services of the petitioner without issuing any show cause notice and the provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as Act) had not been complied with and the persons who
are junior to him are continuing in service. The services of the petitioner had been terminated
without following the due process of law as no opportunity of being heard was afforded to him and
the petitioner is unemployed after his termination. The last drawn wages of the petitioner was Rs.
3500/- per month. Against this back-drop a prayer for re-instatement along-with all consequential
benefits including back-wages has been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
6749
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged? . . .OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
. . .OPP.
3. Whether this petition is not maintainable in view of preliminary objections?
. . .OPR.
4. Relief.
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
: Yes.
Issue no. 2
: Entitled to reinstatement with seniority and continuity but without back-
wages
Issue no. 3
No
Relief.
Reference answered in favour of the petitioner and against the respondent per
operative part of award.
REASONS FOR FINDINGS
Issue no.1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
mess helper by the respondent after completing selection process. He further contended that the
services of the petitioner had been terminated by the respondent illegally without serving any notice
as required under section 25-F of the Act as he had completed 240 working days in each calendar
year and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 8.3.2006 as mess helper vide appointment letter mark X and he used to live in
hostel. There were nine hostels and nine messes at university campus and students were also living
in the hostels. He further stated that the messes used to run throughout the year and he was working
there as a mess helper from 8.3.2006 to 15.4.2011. No notice had been issued to him before his
6750
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the
petitioner had been appointed as mess helper on 18.11.2005 as per Ex. PW-2/A and at present there
are twelve hostels in the respondent university. There are separate messes for each hostel and the
mess used to run semester wise and after the completion of semester, the mess remain closed for
two months. No notice before terminating the services of the petitioner had been given as his
services had been engaged for a short period as per the requirement of work. The petitioner had
worked w.e.f. August, 2005 till June, 2009 as per Ex. PW-2/B. After the termination of the services
of the petitioner other workers have been engaged in the mess. The messes in the university are
permanent in nature. The petitioner was getting Rs. 1400/- per month as salary. In
crossexamination, he admitted that the petitioner was engaged in the mess on cooperative basis for
specific period. He also admitted that the petitioner was being paid the wages out of the money
collected by the students and at present the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as mess helper by the respondent vide
letter Ex. PW-2/A and worked as such w.e.f. August, 2005 till June, 2009 as per year wise detail of
days Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked with
the respondent till 15.4.2011 but when regard is given to entire evidence on record except the bald
statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 87 days in the year, 2005, 239 days in the year, 2006, 281 days in the
year, 2007, 284 days in the eyar, 2008 and 146 days in the year, 2009. There is nothing on record
which could go to show that the petitioner had completed 240 working days in twelve calendar
months preceding his termination. It is by now well settled that the burden of proof lies on the
workman to show that he had worked continuously for 240 days in twelve calendar months
preceding his termination. In 2009 (120) FLR 1007 in case titled as Relip Nagarpalika Vs. Babuji
Gabhaji Thakore and others, the Hon’ble Supreme Court has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
6751
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:—
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
reason. In the present case the petitioner has proved on record by examining PW-2 Shri Papinder
Kumar, Clerk that after his termination, other workers have been engaged in the mess. This witness
(PW-2) has categorically stated that after the termination of the petitioner, other workers have been
engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram Sweta,
Superintendent in his cross-examination that after the termination of the petitioner fresh workers
had been engaged and no notice was issued to the petitioner before terminating his services. He
further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
6752
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
19. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of
the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.3 is decided
in favour of petitioner and against the respondent.
6753
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records. Announced in the open Court today on this 20th
Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
___________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P)
Ref. No.
:
69 of 2013.
Instituted on.
:
1.10.2013.
Decided on
:
20.11.2015.
Brahma Nand S/o Shri Surat Ram R/o Village Jhaloti, P. OBarog, Tehsil Theog, District
Shimla HP.
. . .Petitioner.
Vs.
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri T.S Chauhan, Advocate.
For respondent : Shri Balwant Singh Thakur, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Brahma Nand S/o Shri Surat Ram R/o
Village Jhaloti, P. OBarog, Tehsil Theog, District Shimla, HP, who was employed as
cook w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of Horticulture and
Forestry Nauni, District Solan, HP 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 from which date the above worker is entitled to from the
above employer?”
6754
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
2. In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 1.9.2007 and completed 240 days in each calendar year without
any break. The respondent is a university and creation of statute and is governed by statute and it is
the statutory liability of the university to maintain the hostel. The canteen is an integral part of the
hostel. It is also stated that initially the contract was entered by the petitioner with the university for
one year and thereafter the respondent continued the service without the contract and the petitioner
used to work on daily wages. On 15.4.2011, the respondent orally terminated the services of the
petitioner without issuing any show cause notice and the provisions of the Industrial Disputes Act,
1947 (hereinafter referred to as Act) had not been complied with and the persons who are junior to
him are continuing in service. The services of the petitioner had been terminated without following
the due process of law as no opportunity of being heard was afforded to him and the petitioner is
unemployed after his termination. The last drawn wages of the petitioner was Rs. 3500/- per month.
Against this back-drop a prayer for re-instatement along-with all consequential benefits including
back-wages has been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged?
. . .OPP.
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
. . .OPP.
3. Whether this petition is not maintainable in view of preliminary objections? . . .OPR.
4. Relief.
6755
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
:
Yes.
Issue no. 2
:
Entitled to reinstatement with seniority and continuity but without
back-wages
Issue no. 3
:
No
Relief.
:
Reference answered in favour of the petitioner and against the
respondent per operative part of award.
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
cook by the respondent after completing selection process. He further contended that the services of
the petitioner had been terminated by the respondent illegally without serving any notice as
required under section 25-F of the Act as he had completed 240 working days in each calendar year
and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 1.9.2007 as cook vide appointment letter mark X and he used to live in hostel.
There were nine hostels and nine messes at university campus and students were also living in the
hostels. He further stated that the messes used to run throughout the year and he was working there
as a mess helper from 1.9.2007 to 15.4.2011. No notice had been issued to him before his
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the
petitioner had been appointed as mess helper on 14.8.2007 as per Ex. PW-2/A and at present there
are twelve hostels in the respondent university. There are separate messes for each hostel and the
mess used to run semester wise and after the completion of semester, the mess remain closed for
6756
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
two months. No notice before terminating the services of the petitioner had been given as his
services had been engaged for a short period as per the requirement of work. The petitioner had
worked w.e.f. September, 2007 till June, 2009 as per Ex. PW-2/B. After the termination of the
services of the petitioner other workers have been engaged in the mess. The messes in the
university are permanent in nature. The petitioner was getting Rs. 2500/- per month as salary. In
cross examination, he admitted that the petitioner was engaged in the mess on cooperative basis for
specific period. He also admitted that the petitioner was being paid the wages out of the money
collected by the students and at present the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as Cook by the respondent vide letter
Ex. PW-2/A and worked as such w.e.f. September 2007 till June, 2009 as per year wise detail of
days Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked with
the respondent till 15.4.2011 but when regard is given to entire evidence on record except the bald
statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 122 days in the year, 2007, 292 days in the year, 2008 and 146 days
in the year, 2009. There is nothing on record which could go to show that the petitioner had
completed 240 working days in twelve calendar months preceding his termination. It is by now
well settled that the burden of proof lies on the workman to show that he had worked continuously
for 240 days in twelve calendar months preceding his termination. In 2009 (120) FLR 1007 in case
titled as Relip Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court
has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:-
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
6757
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
reason. In the present case the petitioner has proved on record by examining PW-2 Shri Papinder
Kumar, Clerk that after his termination, other workers have been engaged in the mess. This witness
(PW-2) has categorically stated that after the termination of the petitioner, other workers have been
engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram Sweta,
Superintendent in his cross-examination that after the termination of the petitioner fresh workers
had been engaged and no notice was issued to the petitioner before terminating his services. He
further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
6758
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
19. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of
the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.3 is decided
in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records.
Announced in the open Court today on this 20th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
6759
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
: 75 of 2013.
Instituted on : 5.10.2013.
Decided on
: 20.11.2015.
Kishori Lal S/o Shri Jeet Ram R/o Village & P.O Barog, Tehsil Theog, District Shimla HP.
. . .Petitioner.
Vs.
Dr. Y.S Parmar University of Horticulture & Forestry, Nauni, District Solan, HP through its
Registrar.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri T.S Chauhan, Advocate.
For respondent : Shri Balwant Singh Thakur, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Shri Kishori Lal S/o Shri Jeet Ram R/o
Village & P.O Barog, Tehsil Theog, District Shimla HP, who was employed as cook
w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of Horticulture and
Forestry Nauni, District Solan, HP 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 from which date the above worker is entitled to from the
above employer?”
2. In nutshell, the case of the petitioner is that after the completion of education, he got
himself enrolled with the employment exchange and came to know that respondent university is
engaging staff for mess and an advertisement had been issued by inviting the application form from
the eligible candidates by the university and as such he applied for the same and thereafter he was
called for interview and was selected for the post of mess helper on contract basis. It is further
stated that the petitioner was fulfilling the eligibility criteria as laid down for the aforesaid post.
The petitioner joined his duties on 2nd March, 2005 and completed 240 days in each calendar year
without any break. The respondent is a university and creation of statute and is governed by statute
and it is the statutory liability of the university to maintain the hostel. The canteen is an integral
part of the hostel. It is also stated that initially the contract was entered by the petitioner with the
university for one year and thereafter the respondent continued the service without the contract and
the petitioner used to work on daily wages. On 15.4.2011, the respondent orally terminated the
services of the petitioner without issuing any show cause notice and the provisions of the Industrial
Disputes Act, 1947 (hereinafter referred to as Act) had not been complied with and the persons who
are junior to him are continuing in service. The services of the petitioner had been terminated
without following the due process of law as no opportunity of being heard was afforded to him and
the petitioner is unemployed after his termination. The last drawn wages of the petitioner was Rs.
3500/- per month. Against this back-drop a prayer for re-instatement along-with all consequential
benefits including back-wages has been made.
6760
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that there was no relationship
established between the employer and employee, that the respondent is not an industry and that the
claim is beyond limitation. On merits, it has been asserted that the petitioner was neither engaged
nor appointed by the respondent, who worked in the hostel of the respondent for the short span of
time, hence, the question of completion of 240 days in each calendar year does not arise. It is
further asserted that the work of cook was outsourced to the petitioner and the wages were paid to
him from the funds which were collected by the students amongst themselves. It is denied that the
petitioner had worked with the respondent continuously for a long time and had completed his
normal tenure of service in any calendar year. It is clarified that the messes in the hostel of the
respondent are run on co-operative basis by the students on “no profit no loss” basis and since the
work was outsourced on monthly basis, the question of maintaining any service record does not
arise as the petitioner was neither a contractual employee nor a daily wager. It is denied that the
persons junior to the petitioner are still working with the respondent. The respondent prayed for the
dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
17.9.2014.
1. Whether the services of the petitioner w.e.f. 15.4.2011 were terminated without
complying with the provisions of the Industrial Disputes Act, 1947 as alleged? . . .OPP
2. If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
...OPP.
3. Whether this petition is not maintainable in view of preliminary objections?
. . .OPR.
4. Relief.
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination, my
findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no. 2
Entitled to reinstatement with seniority and continuity but without back-wages
Issue no. 3
No.
Relief.
Reference answered in favour of the petitioner and against the respondent per
operative part of award.
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was selected as
cook by the respondent after completing selection process. He further contended that the services of
6761
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
the petitioner had been terminated by the respondent illegally without serving any notice as
required under section 25-F of the Act as he had completed 240 working days in each calendar year
and the persons junior to him are still working with the respondent.
9. On the other hand, Ld. Counsel for the respondent contended that the work of mess
helper was outsourced to the petitioner on contract basis, who was never engaged by the respondent
and the wages were being paid to him from the funds collected by the students amongst themselves.
He further contended that since the petitioner had been engaged on contract basis, the question of
completion of 240 days in each calendar year and application of section 25-F of the Act does not
arise.
10. The petitioner while appearing into the witness box as PW-1 has stated that he had
been appointed on 2.3.2005 as cook vide appointment letter mark X and he used to live in hostel.
There were nine hostels and nine messes at university campus and students were also living in the
hostels. He further stated that the messes used to run throughout the year and he was working there
as a mess helper from 2.3.2005 to 15.4.2011. No notice had been issued to him before his
termination. He had completed 240 days in a calendar year. Ex. PW-1/A is the copy of information
sought by him under R.T.I Act and Ex. PW-1/B is the copy of office order dated 30.4.2012. Hostels
and messes are permanent in nature and before his termination he used to get only 3500/- as salary
and presently he is unemployed. In cross-examination, he admitted that he was being paid through
the money collected by the students in the hostel. He further admitted that he had not completed
240 days before his termination. He denied that no appointment letter had been issued to him and
he had been appointed under a particular scheme. He denied that he was not qualified for the post
against which he was employed.
11. PW-2 Shri Papinder Kumar Clerk of respondent university has stated that the petitioner
had been appointed as cook on 3.3.2005 as per Ex. PW-2/A and at present there are twelve hostels
in the respondent university. There are separate messes for each hostel and the mess used to run
semester wise and after the completion of semester, the mess remain closed for two months. No
notice before terminating the services of the petitioner had been given as his services had been
engaged for a short period as per the requirement of work. The petitioner had worked w.e.f. March,
2005 till June, 2009 as per Ex. PW-2/B. After the termination of the services of the petitioner other
workers have been engaged in the mess. The messes in the university are permanent in nature. The
petitioner was getting Rs. 1500/- per month as salary. In cross-examination, he admitted that the
petitioner was engaged in the mess on cooperative basis for specific period. He also admitted that
the petitioner was being paid the wages out of the money collected by the students and at present
the hostels messes are being run on out-source basis.
12. On the other hand, the respondent examined RW-1 Shri Kali Ram Sweta,
Superintendent (EC), who has stated that the petitioner was engaged as mess helper temporarily in
the year, 2007 for short span of time as per the requirement of mess. The petitioner was never
engaged by the university rather was casually engaged by the students welfare officer and the
wages to the petitioner were being paid from student’s funds collected by themselves. Ex. R-1 is
the copy of academic regulation. In cross-examination, he admitted that no notice was issued to the
petitioner before terminating his services. He denied that the work of the petitioner was permanent
in nature. He admitted that after the termination of the petitioner, fresh workers have been engaged.
He also admitted that the work is still available in the mess.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was appointed as Cook by the respondent vide letter
Ex. PW-2/A and worked as such w.e.f. March, 2005 till June, 2009 as per year wise detail of days
6762
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Ex. PW-2/B, placed on record. No, doubt the case of the petitioner is that he had worked with the
respondent till 15.4.2011 but when regard is given to entire evidence on record except the bald
statement of the petitioner there is nothing on record which could show that the petitioner has
worked with the respondent till 15.4.2011. Moreover, the year wise detail of days Ex. PW-2/B,
shows that he had worked for 170 days in the year, 2005, 262 days in the year, 2006 283 days in the
year, 2007, 283 days in the year, 2008 and 145 days in the year, 2009. There is nothing on record
which could go to show that the petitioner had completed 240 working days in twelve calendar
months preceding his termination. It is by now well settled that the burden of proof lies on the
workman to show that he had worked continuously for 240 days in twelve calendar months
preceding his termination. In 2009 (120) FLR 1007 in case titled as Relip Nagarpalika Vs. Babuji
Gabhaji Thakore and others, the Hon’ble Supreme Court has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:-
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no
coworker was examined; muster roll produced by the employer has not been contradicted.
It is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination, rather, he himself admitted in cross-examination that he had not
completed 240 days before his termination.
15. From the perusal of mandays chart, Ex. PW-2/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The other plea of the petitioner is to the effect that the persons junior to him have been
engaged by the respondent. It has been held by the Hon’ble Supreme Court in a series of judgments
that it is not necessary for the workman to complete 240 days during preceding twelve calendar
6763
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
months for taking the benefits of section 25-G and 25-H of the Act. In the decision titled as
Harjinder Singh vs. Punjab State Warehousing Corporation, (2010) 3 SCC 192, it was held by
the Hon’ble Apex Court that for attracting the applicability of Section 25G of the Act, the workman
is not required to prove that he had worked for a period of 240 days during twelve calendar months
preceding the termination of his service and it is sufficient for him to plead and prove that while
effecting retrenchment, the employer violated the rule of ‘last come first go’ without any tangible
reason. In the present case the petitioner has proved on record by examining PW-2 Shri Papinder
Kumar, Clerk that after his termination, other workers have been engaged in the mess. This witness
(PW-2) has categorically stated that after the termination of the petitioner, other workers have been
engaged in the mess. This fact has also been admitted by RW-1 Shri Kali Ram Sweta,
Superintendent in his cross-examination that after the termination of the petitioner fresh workers
had been engaged and no notice was issued to the petitioner before terminating his services. He
further admitted that the work is still available in the mess.
17. Thus, having regard to entire evidence on record and in view of above cited rulings, I
have no hesitation in coming to the conclusion that after the termination of the services of the
petitioner fresh workers have been engaged by the respondent and as such the termination of
services of the petitioner by the respondent without complying with the provisions of the Act, 1947
is improper and unjustified as the respondent has violated the principle of “first come last go” and
also violated the provisions of sections 25-G & H of the Act. Accordingly, issue no.1 is decided in
favour of petitioner and against the respondent.
Issue no. 2.
18. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
19. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
20. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
6764
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
21. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of
the petitioner and against the respondent.
Issue no. 3.
22. In support of this issue, no evidence was led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.3 is decided
in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 3, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records.
Announced in the open Court today on this 20th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
_________
Ref.
:
86 of 2013
Sh. Sanjay Dutt V/s M/s solvopet plot No. 98 Gondpur Industrial Area, Distt Sirmour.
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
It is 10.30 AM but none appeared on behalf of the petitioner. Be awaited.
Presiding Judge
Labour Court, Shimla.
Case Called again
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
6765
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
It is 12.45 AM but none appeared on behalf of the petitioner. Be called after lunch.
Presiding Judge
Labour Court, Shimla.
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
It is 3.30 PM. Case called in pre and post lunch session but neither the petitioner nor his
Authorized Representative has appeared before this Court, hence ,this Court is left with no other
alternative but to decied the same on the basis of material whichever is available on the file. The
following reference has been received from appropriate government for adjudication.
“Whether termination of services of Shri Shamahad Ali R/o Village Kundiyon
P.O.Jamniwala, Tehsil Paonta sahib , District Sirmour , HP w.e.f. 7.4.2012(as Alleged
by the worker)by the employer M/s Solvopet, plot No.98, Gondpur Industrial
Area,Village Nihlgarh , District Sirmour, HP (Factory Office) and M/s Solvopet, R-
304, Dua Complex 24,Veer savarkar Block , Vikas Marg, Shankerpur Delhi , 110092
(Corporate Office)without complying with the provision of Industrial Act, 1947 is legal
and justified ?If not, what amount of back wages, seniority ,[past service benefit and
compensation the above worker is entitled to from the above employer”
The petitioner has filed the claim on 3.3.2014 and thereafter the reply was filed by the
respondent and on the pleadings of the parties, the following issues were framed by this Court on
23.9.2014.
1. Whether the termination of services of the petitioner by the respondents w.e.f. 7.4.2012
is in violation of the provisions of Industrial Disputes Act, as alleged?
...OPP.
2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to ?
...OPP.
3. Whether the petitioner is not a workmen as alleged?
....OPR.
4. Relief
Thereafter, the case was listed for the evidence of the petitioner. However, the petitioner has
failed to lead any evidence before this Court in support of his claim petition, in order to show that
his services have been illegally terminated by the respondents without complying with the
provisions of the Industrial Disputes Act,1947. Hence, the reference , aforesaid , is ordered to be
answered against him. Let a copy of this order/award be sent to the appropriate government for
publication in the official gazette. File , after completion , be consigned to records .
Announced:
17.11.2015
Sd/-
Presiding Judge,
Labour Court , Shimla.
6766
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Ref.
: 85 of 2013
Sh Sanjay Dutt V/s M/s solvopet plot No. 98 Gondpur Industrial Area,
Distt Sirmour.
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
It is 10.45 AM but none appeared on behalf of the petitioner. Be awaited.
Presiding Judge
Labour Court, Shimla.
Case Called again
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
It is 12.30 AM but none appeared on behalf of the petitioner. Be called after lunch.
Presiding Judge
Labour Court, Shimla.
17.11.2015
Present:- None for the petitioner.
Sh. Vikram Singh Thakur, Advocate vice csl. for respondent.
It is 3.45 PM. Case called in pre and post lunch session but neither the petitioner nor his
Authorized Representative has appeared before this Court, hence ,this Court is left with no other
alternative but to decied the same on the basis of material whichever is available on the file. The
following reference has been received from appropriate government for adjudication.
“Whether termination of services of ShriSanjay Dutt R/o Village Paagar P.O.Rajpura,
Tehsil Paonta sahib , District Sirmour , HP w.e.f. 7.4.2012(as Alleged by the worker)
by the employer M/s Solvopet, plot No.98, Gondpur Industrial Area,Village Nihlgarh,
District Sirmour, HP (Factory Office) and M/s Solvopet, R-304, Dua Complex 24,Veer
savarkar Block , Vikas Marg, Shankerpur Delhi , 110092 (Corporate Office)without
complying with the provision of Industrial Act, 1947is legal and justified ?If not, what
amount of back wages, seniority ,[past service benefit and compensation the above
worker is entitled to from the above employer”
The petitioner has filed the claim on 3.3.2014 and thereafter the reply was filed by the
respondent and on the pleadings of the parties, the following issues were framed by this Court on
23.9.2014.
1. Whether the termination of services of the petitioner by the respondents w.e.f. 7.4.2012
is in violation of the provisions of Industrial Disputes Act, as alleged?
...OPP.
6767
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to ?
...OPP.
3. Whether the petitioner is not a workmen as alleged?
...OPR.
4. Relief
Thereafter, the case was listed for the evidence of the petitioner. However, the petitioner has
failed to lead any evidence before this Court in support of his claim petition, in order to show that
his services have been illegally terminated by the respondents without complying with the
provisions of the Industrial Disputes Act,1947. Hence, the reference , aforesaid , is ordered to be
answered against him. Let a copy of this order/award be sent to the appropriate government for
publication in the official gazette. File , after completion , be consigned to records .
Sd/-
Presiding Judge,
Labour Court , Shimla.
_________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM- LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
01 of 2012.
Instituted on
:
2.1.2012.
Decided on
:
30.11.2015.
Rajesh Kumar S/o Shri Jagat Ram R/o Shop No. 107, Sasbji Mandi Shimla, District Shimla,
H.P.
. . .Petitioner.
Vs.
1. The Managing Director, Himachal Road Transport Corporation, Shimla, H.P.
2. The Divisional Manager, Himachal Road Transport Corporation, Solan, District Solan,
HP.
. . .Respondents.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : S/Shri Ramakant Sharma & J.R Sharma Advocates.
For respondent : Shri Rahul Kashyap, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
1. “Whether termination of the services of Shri Rajesh Kumar S/o Shri Jagat Ram
R/o Shop No. 107, Subji Mandi, Shimla by i) The Managing Director, Himachal
Road Transport Corporation, Shimla, H.P ii) The Divisional Manager, HRTC
Solan, District Solan, HP w.e.f.20.3.2001 without giving him advance notice,
without paying retrenchment compensation and continuance of juniors & fresh
6768
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
appointments in service has not been denied, therefore, the action in violation of
provisions of section 25-F, G & H 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 management?”
2. In nutshell, the case of the petitioner is that vide letter dated 13.6.2000, he was initially
engaged as electrical helper in electric trade for a period of 89 days and was subjected to medical
examination before his joining. At the first instance the petitioner was appointed/engaged for 89
days, however, his services were extended for 89 days till 31st March, 2001. It is further stated that
the petitioner had discharged his duties to the best of his abilities and to the entire satisfaction of his
superiors and nothing adverse had ever been conveyed to him. The services of the petitioner had
been terminated by the Divisional Manager, Solan orally without assigning any reason and without
completing the codal formalities as prescribed under the Industrial Disputes Act, 1947 (hereinafter
referred to as Act). He had completed 240 days in the preceding twelve calendar months. It is
further asserted that junior persons to him have been retained by the respondent. Not only this, the
person similarly situated Shri Shyam Lal S/o Shri Durga Dass electrician, who was initially
appointed in 2000 and is continuing till date and presently posted at Divisional workshop Tara
Devi. The respondent had also engaged fresh hand namely Prem Chand, who was appointed on
20.5.2009. The post of electrician helpers are lying vacant in different divisions. Against this back-
drop a prayer for re-instatement along-with all consequential benefits including back-wages has
been made.
3. By filing reply, the respondent contested the claim of the petitioner wherein
preliminary objections qua maintainability, that the petitioner has no locus-standi to file and
maintain the present petition, concealment of material facts and estoppel have been taken. On
merits, it has been asserted that the petitioner was engaged on part time basis as electrician helper
for 89 days w.e.f. 9.6.2000 to 5.9.2000 on fixed remuneration of Rs. 1,000/- per month and
necessary agreement/contract of service has been made by the respondent with the petitioner. It is
further submitted that the petitioner was again engaged on part time basis for 89 days w.e.f.
11.9.2000 to 8.12.2000 on fixed remuneration of Rs. 2,000/- per month and thereafter w.e.f.
21.12.2000 to 19.3.2000 for 89 days basis. It is admitted that the petitioner had completed 240 days
in preceding twelve months financial year but he had not completed 240 days in preceding twelve
months in a calendar year. There is no work of electrician helper in Solan Division after 19.3.2001
and S/Shri Rajesh Kumar and Shyam Lal were re-engaged as per order passed by this Court. The
respondent prayed for the dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties gave rise to the following issues which were struck on
20.6.2013.
12. Whether the termination of the services of the petitioner w.e.f. 20.3.2001 without
notice and paying retrenchment compensation and continuance of juniors and fresh
appointments is illegal and unjustified as alleged?
. . .OPP.
13. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled
to?
. . .OPP.
14. Whether the petitioner is estopped from filing this petition by his own acts, deeds and
conduct etc.?
. . .OPR.
6769
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
15. Whether this petition is not maintainable as alleged?
. . .OPR.
16. Relief.
6. Besides having heard the Learned Counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no. 2
Entitled to reinstatement with seniority and continuity but without back-
wages
Issue no. 3
No.
Issue no. 4
No.
Relief.
Reference answered in favour of the petitioner and against the respondent
per operative part of award.
REASONS FOR FINDINGS
Issue no. 1.
8. The learned counsel for the petitioner contended that the petitioner was engaged as
electrician helper in electric trade for a period of 89 days on 13.6.2000, however, he continued till
31.3.2001 on monthly salary of Rs. 1,000/- which was later on enhanced to Rs. 2,000/- per month.
The period of 89 days was extended from time to time after a gap of one or two days till 31.3.2001.
Thereafter, the services of the petitioner had been terminated orally without assigning any reason
and without the compliance of mandatory provisions of law. He also contended that junior persons
to the petitioner have been retained. He further contended that since the petitioner had completed
240 days in preceding twelve calendar months, hence, his termination without assigning any reason
is against the provisions of law.
9. On the other hand, Ld. Counsel for the respondent contended that the since the
petitioner had been engaged for specific period of 89 days on contract basis and his contract was
not extended after 31.3.2001, hence, he is not entitled to any relief.
10. The petitioner while appearing into the witness box as PW-1 has tendered his affidavit
Ex. PW-1/A, in examination-in-chief wherein he reiterated almost all the averments as made in the
claim petition. He also tendered in evidence the copy of matriculation certificate, Ex. PW-1/B,
mark sheet of ITI Ex. PW-1/C, Trade certificate Ex. PW-1/D, experience certificate Ex. PW-1/E,
office order Ex. PW-1/F, application Ex. PW-1/G, medical certificate Ex. PW-1/H, mandays chart
Ex. PW-1/J and copy of award Ex. PW-1/K. In cross-examination he admitted that he was
appointed for 89 days by HRTC on monthly salary of Rs. 1000/-. He further admitted that he was
again re-engaged for 89 days w.e.f. 11.9.2000 to 8.12.2000 on monthly salary of Rs. 2,000/-. He
denied that he was not orally terminated by the respondent. He also denied that he had not worked
upto 31.3.2001.
6770
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
11. On the other hand, the respondent examined RW-1 Ms. Sunita, Senior Assistant, who
deposed that the petitioner had been engaged as apprentice in the respondent department, who
completed his apprenticeship in electric trade. The petitioner had been engaged as part time for a
period of 89 days on monthly salary of Rs. 1,000/- w.e.f. 9.6.2000 to 5.9.2000, 11.9.2000 to
8.12.2000 and thereafter w.e.f. 21.12.2000 to 19.3.2001 and to this effect agreements Ex. RW-1/A
to Ex. RW-1/C had been entered. Ex. RA and Ex. RB are the copies of office order dated 21.8.2000
and 21.12.2000. The petitioner had not completed 240 days in a calendar year and after 19.3.2001,
the petitioner had not been reengaged. In cross-examination, she stated that HRTC Solan division
falls under HRTC division Shimla. She admitted that the petitioner was appointed as electrician on
contract basis as per Ex. RW-1/B. She further admitted that the period of contract was extended
thrice for 89 days. She also admitted that the petitioner was engaged on June, 2000 and worked as
such till March, 2001. The copy of mandays chart of the petitioner is Ex. PW-1/J. The petitioner
has completed continuous 266 days in the preceding twelve months. She admitted that no notice
and compensation was issued to the petitioner prior of his termination. She stated that no record
was available with her to show that similarly situated person Shri Rajesh Kumar S/o Shri
Parmanand was terminated and thereafter re-engaged by the order of this Court as per award Ex.
PW-1/K. She had no knowledge that the post of electrician helper was available at the time of
termination of the petitioner. She admitted that the seniority of the employees is maintained at
divisional level. She has no knowledge that after the year, 2001 many persons were engaged by the
respondent. She could not state from the record that Shyam Lal S/o Shri Durga Dass was engaged
as electrician on 20.5.2009 and thereafter he died and this post was still available.
12. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner was initially engaged as a part time electrician helper
for a period of 89 days on monthly salary of Rs. 1,000/- w.e.f. 9.6.2000 to 5.9.2000 vide agreement
Ex. RW-1/A. Thereafter, his contract was extended w.e.f. 11.9.2000 to 8.12.2000 for another
period of 89 days vide agreement Ex. RW-1/B and finally his contract was extended w.e.f.
21.12.2000 to 19.3.2001 vide agreement Ex. RW-1/C. Therefore, it has become clear that the
period of contract was extended twice. It is also not disputed that before his alleged
termination/disengagement, the petitioner had not been given any notice or paid retrenchment
compensation. The mandays chart, Ex. PW-1/J goes to show that in the preceding twelve calendar
months of his alleged termination, the petitioner had completed more than 240 days. This fact has
also been admitted by Ms. Sunita, Senior Assistant (RW-1). In Haryana State Electronics
Development Corporation Limited Vs Mamnl, (2006) 9 SCC 434. It has been held by the Hon’ble
Supreme Court that the appointment for a short period (89 days) and termination of services at the
end of the said period and reappointment after a gap of one day, such action of termination and
reappointment repeated again and again for a period of about one year and a half year, in such
circumstances, the termination was not bonafide but adopted to defeat the object of the Act. Thus it
is not covered by section 2(oo) (bb) of the Industrial Disputes Act, 1947.
13. Similarly our own Hon’ble High Court in case Shri Manoj Kumar Sharma Vs.
HRTC & Another in CWP No. 39 of 06 dated 28.5.2007 has held that the intention of the
management not to engage the respondent workman for a specified period was to defeat the rights
of a workman under section 25-F of the Act as in that case also the petitioner was initially
appointed for 89 days and after giving him fictional breaks, reappointed for another 89 days
followed by one year appointment. The practice has been adopted by the management of HRTC to
defeat the provisions of section 25-F of the Industrial Disputes Act, 1947 which amounts to unfair
labour practice.
14. In the present case also as observed earlier the petitioner was initially appointed for a
period of 89 days w.e.f. 9.6.2000 and after giving him frictional breaks he was reappointed for
6771
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
another 89 days followed by another re-appointed for 89 days till 17.3.2001. Therefore, it can
safely be held that the such action of repeated termination and re-appointment by the respondent
was not bonafide but the same was adopted to defeat the object of the Act which amounts to unfair
labour practice. Undoubtedly, the respondent has taken a plea that since, the services of the
petitioner had been engaged on contract basis as per office orders Ex. RA and Ex. RB, his alleged
termination/disengagement does not fall within the definition of retrenchment as given under
section 2 (oo) but the same is governed by the exception as given under section 2 (oo) (bb) of the
Act but the plea of the respondent does not hold good in view of the law laid down supra. Since, it
stands proved, on record, that in the preceding twelve months, before his termination, the petitioner
had completed more than 240 days, it was obligatory upon the respondent to have issued him notice
and also to pay him retrenchment compensation as per section 25-F of the Act. Since, nothing like
such was done, I have no hesitation in holding that the termination/disengagement of the petitioner
is in contravention of the provisions of section 25-F of the Act and for this reason, the same is
illegal and improper.
15. Another plea which has been taken by the petitioner is to this effect that his juniors and
fresh appointments/similar situated persons are continuing with the respondent but to prove this
plea no evidence has been led by the petitioner and no record from the office of the respondent was
summoned. Even, RW-1 Ms. Sunita has stated in her cross-examination that she could not state that
Prem Chand was engaged on 20.5.2009 after the termination of the petitioner and Shyam Lal S/o
Shri Durga Dass was engaged as electrician on 20.5.2009. She further stated that she has no
knowledge that after the year, 2001, many persons were engaged by the respondent. Thus, keeping
in view the entire evidence on record, I hold that the petitioner has failed to prove on record that his
juniors and fresh appointments/similar situated persons are continuing with the respondent.
Accordingly, issue no.1 is partly decided in favour of petitioner and against the respondent.
Issue no. 2.
16. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
17. Now, the question which arises for consideration, before this Court is as to whether
the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
18. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
6772
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
19. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. There
is no cogent evidence on record led by the petitioner that he was not gainfully employed after his
disengagement. Even, in his examination-in-chief he has not asserted even a single word that he
was not gainfully employed after his disengagement. Therefore, in view of the entire evidence, on
record, coupled with the rulings (supra), I have no hesitation in holding that the petitioner is not
entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of the petitioner and
against the respondent.
Issue no. 3.
20. To prove this issue, no specific evidence has been led by the respondent in order to
show that the petitioner is estopped from filing this petition by his own acts, deeds and conduct etc.
Moreover, the petitioner has filed the present claim petition pursuant to the reference sent by the
appropriate government to this Court for adjudication. Accordingly, this issue is answered in favour
of the petitioner and against the respondent.
Issue no. 4.
21. In support of this issue, no evidence has been led by the respondent. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.4 is decided
in favour of petitioner and against the respondent.
Relief
As a sequel to my above discussion and findings on issue no.1 to 4, the claim of the
petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service
forthwith with seniority and continuity. However the petitioner is not entitled to back wages and as
such the reference is ordered to be answered in favour of the petitioner and against the respondent.
Let a copy of this award be sent to the appropriate government for publication in official gazette.
File, after completion, be consigned to records.
Announced in the open Court today on this 30th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref. No.
:
6 of 2011.
Instituted on.
:
1.4.2011.
Decided on
:
30.11.2015.
6773
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Prem Singh S/o late Shri Barfu Ram R/o Village Langehad, P.O Giyun, Tehsil Dharampur,
District Mandi, HP.
. . .Petitioner..
Vs.
M/s Concept Cartonz, Hil Top Estate, Village Bhatoli Kalan, Jharmajri, Baddi, District
Solan, HP through its Managing Director.
. . .Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri R.K Khidtta, Advocate.
For respondent : Shri Rupesh Sharma, Advocate.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether verbal termination of the services of Shri Prem Singh S/o late Shri Barfu
Ram, Graphic Designer by the management of M/s Concept Cartonz, Hil Top Estate,
Village Bhatoli Kalan, Jharmajri, Baddi, District Solan, HP w.e.f. 24.8.2009 without
serving any chargesheet, without conducting enquiry and without following the
provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, to what
back wages, service benefits and relief the above named workman is entitled to from
concerned management?”
2. In nutshell, the case of the petitioner is that he was engaged as Graphic Designer by the
respondent company in the month of September, 2007 and worked as such till 24.8.2009
continuously. It is further stated that w.e.f. 24.8.2009, the services of the petitioner had been
terminated illegally without complying with the provisions of section 25-F, 25-N, 25-G and 25-H
of the Industrial Disputes Act, 1947 (hereinafter referred to as Act). It is also stated that the work
and conduct of the petitioner remained up to the satisfaction of the official of the respondent, who
had completed 240 days in each calendar year and his services were terminated without assigning
any reason. Juniors to the petitioner are still working with the respondent company. The work
which the petitioner had been performing since the year, 2007, is still available with the respondent
company and the termination of the services of the petitioner in the aforesaid manner tantamount to
unfair labour practice. It is also stated that the petitioner is a workman as defined in the Act as he
used to work manually with the respondent. Against this back-drop a prayer for re-instatement
along-with all consequential benefits including back-wages has been made. It is also prayed that the
respondent company may be directed to pay Rs. 50,000/- as damages and litigation cost amounting
to Rs. 11,000/-.
3. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that the petitioner had not come to this
Court with clean hands and that the petitioner had been working in supervisory capacity and his
designation was of officer. On merits, it has been asserted that the petitioner joined the company on
20.12.2007 but left the company without any intimation in Jan., 2008 and on 18.3.2008, he again
came to the factory and requested to keep him on the rolls of the company and as such the
respondent on his written apology, appointed him afresh on 18.3.2008 and worked till 19.8.2009. It
is further submitted that the petitioner was working as officer in supervisory capacity and when two
6774
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
officers quarreled with each other and in order to maintain discipline, both were terminated after
calling their written apology. The real facts of the case are that the petitioner had quarreled with his
co-officer Mr. Manish Kumar on 19.8.2009 and in order to maintain discipline, the respondent
reported the matter to the Police against both of them and when they showed adamancy in working
in healthy atmosphere in that event both of them were terminated while giving them their full &
final dues. The respondent prayed for the dismissal of the claim petition.
4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
5. Pleadings of the parties give rise to the following issues which were struck on
22.6.2013.
1. Whether the verbal termination of services of the petitioner by the respondent w.e.f.
24.8.2009 without following the provisions of Industrial Disputes Act, 1947 is illegal
and unjustified as alleged?
. . .OPP.
2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled
to?
. . .OPP.
3. Whether the provisions of the Industrial Disputes Act are not attracted in the case of
the petitioner as alleged?
. . .OPR.
4. Whether this petition is not maintainable as alleged?
. . .OPR.
5. Relief.
6. Besides having heard the learned counsel for the parties, I have also gone through the
record of the case carefully.
7. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no. 2
Entitled to reinstatement with seniority and continuity but without back-
wages.
Issue no. 3
No.
Issue no. 4
No.
Relief.
Reference answered in favour of the and against the per operative part of
award.
REASONS FOR FINDINGS
Issues no.1 & 3.
8. Being interlinked and correlated both these issues are taken up for discussion and
decision.
6775
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
9. The learned counsel for the petitioner contended that the services of the petitioner had
been terminated by the respondent illegally without serving him any notice as required under
section 25-F of the Act and even juniors to him are still working with the respondent. He further
contended that before terminating the services of the petitioner neither any enquiry was conducted
against him nor he was afforded any opportunity of being heard.
10. On the other hand, Ld. Counsel for the respondent contended that the petitioner was
not a workman as he was working as officer in supervisory capacity. He further contended that
when two officers quarreled with each other both of them were called upon to file written apology
for the same and finally both of them were terminated while giving them full & final dues and as
such the termination of the petitioner is not illegal.
11. The petitioner stepped into the witness box as PW-1 to depose that he had been
engaged as Graphic Designer in the month of September, 2007 by the respondent company and
worked continuously till 24.8.2009, when his services had been terminated without issuing any
show cause notice and without complying with the mandatory provisions of the Act. His services
had been terminated without serving any notice, chargesheet and without holding any domestic
enquiry. No compensation had been paid to him and he had worked for more than 240 days in a
calendar year. His juniors namely Brahm Dutt and others are still working in the company. Since,
the date of his termination, he is unemployed. The company officials used to take his signatures on
blank papers. He had not abandoned his job. He is a workman and used to work manually. In the
cross examination, he denied that he himself had left the company without intimation. He admitted
that on 18.3.2008, he went to the company with the request for his re-engagement. He denied that
apology letter had been given by him. He further denied that he was terminated by the respondent
after paying him all his dues. He is still ready to work with the company.
12. On the contrary, the respondent examined one Shri Surender Rattan Sharma, as RW-1,
who tendered his affidavit Ex. RW-1/A in examination-in-chief wherein he reiterated almost all the
averments as made in the reply. He also tendered, in evidence, copy of authority letter Ex. RW-1/B
and copy of letter dated 19.8.2009, Ex. RW-1/C. In cross-examination, he admitted that the
petitioner was engaged as Graphic Designer to design the medicine boxes and the work of design
was being carried by him manually. He denied that the petitioner joined as graphic designer in the
company since, September, 2007. He admitted that the petitioner worked continuously till
19.8.2009. He also stated that the petitioner voluntarily left in the month of Jan., 2008 and again
joined in the month of March, 2008. He denied that the petitioner had given the leave as his father
remained ill. He admitted that the petitioner worked continuously and completed 240 working days
in each calendar year. He further admitted that no FIR was lodged against the petitioner in the
Police station. He also admitted that neither any prior notice had been issued to the petitioner
before terminating his services nor compensation had been paid to him. He admitted that payment
of Rs. 22,258/- had been made to the petitioner as salary for the months of August & September,
2009. He admitted that new person was engaged on the post of the petitioner and the petitioner was
not called for appointment when new person was engaged. He also admitted that neither any show
cause notice was issued nor enquiry was got conducted against the petitioner for quarreling with
Mr. Manish Verma. He denied that the petitioner was not working in supervisory capacity. He
admitted that in case any workman creates indiscipline or commit misconduct in the company, it is
mandatory to conduct the enquiry against the workman and only thereafter, his services could be
terminated.
13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof, it has become clear that the petitioner had worked with the respondent as Graphic
Designer. The case of the petitioner is that he was engaged as Graphic Designer w.e.f. September,
6776
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
2007 but he has failed to produce on record any such document/record which could go to show that
he was engaged in the month of September, 2007. Neither any wages register/attendance register
had been summoned by the petitioner to show that he had worked with the respondent w.e.f.
September, 2007. On the other hand, RW-1 Shri Surender Rattan Sharma has categorically stated
that the petitioner had joined the company on 20.12.2007. Hence, in the absence of any record, I
have no hesitation in holding that the petitioner joined the respondent company on 20.12.2007.
14. The first plea which has been taken by the respondent is to this effect that the petitioner
was working as officer in the supervisory capacity and was drawing more than Rs. 10,000/- per
month and as such the petitioner does not fall under the category of workman as prescribed in
section 2 (s) of the Act. Now, this Court is required to ascertain as to whether the petitioner falls
within the category of workman or not as per section 2 (s) of the Act. At this juncture, it would be
relevant to re-produce section 2 (s) of the Act, which reads as under:
“workman" means any person (including an apprentice) employed in any industry to do any
manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or
reward, whether the terms of employment be express or implied, and for the purposes of
any proceeding under this Act in relation to an industrial dispute, includes any such person
who has been dismissed, discharged or retrenched in connection with, or as a consequence
of, that dispute, or whose dismissal, dischasrge or retrenchment has led to that dispute, but
does not include any such person:
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand
six hundred rupees per mensem or exercises, either by the nature of the duties attached
to the office or by reason of the powers vested in him, functions mainly of a
managerial nature.”
15. It is a settled provision of law that in determining as to whether a person is a workman
or not, the Court has to principally see the main or substantial work for which he was employed.
Neither the designation nor any incidental work done by him will get him out-side the preview of
the Act. The Hon’ble Supreme Court in (1994) 5 S.C.C 737, titled as H.R Adyanthaya and
others Vs. Sandoz (India) Ltd., and another has held that for an employee to be covered by the
definition of workman he must be employed in any industry to do any manual, un-skilled, skilled,
technical, operational, clerical or supervisory work. If he falls within these categories, it has then to
be seen whether he comes within any of the four excluded categories mentioned in section 2 (s) of
the Act. The relevant portion of the aforesaid judgment reads as under:
24…………. Hence, the position in law as it obtains today is that a person to be a
workman under the ID Act must be employed to do the work of any of the categories,
viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not
enough that he is not covered by either of the four exceptions of the definition. We
reiterate the said interpretation.”
16. In the instant case, from the perusal of evidence on record, it has become clear that the
petitioner was engaged as Graphic Designer by the respondent. It has been admitted by RW-1 that
6777
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
the work of the graphic designer was to design the medicine boxes and this work was being carried
out by the petitioner manually. The respondent has failed to prove that the petitioner was employed
in a managerial or administrative capacity or by the reason of power vested under him, the
functions of the petitioner were mainly of a managerial nature. Since, the duties of the petitioner
were of technical nature and he was not performing any supervisory or managerial function, hence,
in such circumstances, it cannot be said that the petitioner was not a workman.
17. Another plea which has been taken by the respondent is that since the petitioner had
quarreled with one Shri Manish Verma, hence, on the basis of indiscipline, his services were
terminated vide Ex. RW-1/C. It has been admitted by RW-1 Shri Surender Rattan Sharma in his
cross-examination that no FIR was lodged against the petitioner in Police Station. He further
admitted that in case any workman creates indiscipline or commit misconduct in the company, it is
mandatory to conduct the enquiry against the workman and only thereafter his services could be
terminated. In the instant case, admittedly no enquiry had been conducted against the petitioner.
Since, the petitioner had been in continuous service of the respondent w.e.f. December, 2007, his
services could not have been terminated as per letter dated 19.8.2009, copy of which is Ex. RW-
1/C, on the plea of misconduct. It is settled legal proposition that a workman, against whom
misconduct is alleged, cannot be dismissed or discharged unless a proper domestic enquiry is held
against him in respect of the alleged misconduct. Even, if the alleged misconduct is proved against
the workman, he cannot be dis-charged or dismissed from service unless he has been afforded
reasonable opportunity of being heard before initiating any action against him by the
employer/respondent. In D. K Yadav Vs. M/s J.M A Industries Ltd. as reported in 1993-1
Supreme Court Service Law Judgments -221, the Hon’ble Apex Court has held as under:
“Reasonable opportunity be given to the employee concerned to put forth his case and
proper enquiry be held before terminating his service.”
In the instant case, admittedly, the petitioner was never asked to answer any charges as no
chargesheet was issued to him and no enquiry was held before terminating his service, on the basis
of alleged misconduct. Therefore, the termination order dated 19.8.2009, without conducting any
enquiry and without affording reasonable opportunity of being heard to the petitioner is in utter
violation of the principles of natural justice.
18. Admittedly, the petitioner had completed more than 240 days in each calendar year,
preceding his termination. It has also been admitted by RW-1 Shir Surender Rattan Sharma in his
cross-examination that the petitioner had worked continuously and completed 240 working days in
each calendar year. He further admitted that neither any prior notice had been issued to the
petitioner before terminating his services nor compensation had been paid to him. He also admitted
that new person was engaged on the post of the petitioner and he (petitioner) was not called for
appointment when new person was engaged. Since, the petitioner had completed 240 working days
in twelve calendar months preceding his termination and that the respondent had engaged new
person in his place, without giving any opportunity of being heard to the petitioner, it was
obligatory upon the respondent to have complied with the provisions of section 25-F, 25-G and 25-
H of the Act before terminating his services but the respondent has failed to comply with the
provisions of the aforesaid sections.
19. Therefore, In view of my foregoing observations, I have no hesitation in holding that
the termination/disengagement of the services of the petitioner by the respondent without holding
enquiry and without complying with the provisions of Industrial Disputes Act, 1947 is illegal and
unjustified as such the termination order Ex. RW-1/C is set aside and quashed. Hence, both these
issues are decided accordingly.
6778
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Issue no. 2.
20. Since I have held under issues no.1 & 3 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is illegal and unjustified,
hence, the petitioner is held entitled to reinstatement in service with seniority and continuity.
21. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
22. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
23. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald statement of the petitioner, there is no cogent evidence on record led by the petitioner
that he was not gainfully employed after his disengagement. Therefore, in view of the entire
evidence, on record, coupled with the rulings (supra), I have no hesitation in holding that the
petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in favour of
the petitioner and against the respondent.
Issue No. 4.
24. In support of this issue, no evidence has been led by the respondent. However, the
petitioner has filed this claim petition pursuant to the reference made by the appropriate
government to this Court for adjudication. I find nothing wrong with this petition which is perfectly
maintainable. Accordingly, this issue is decided in favour of the petitioner and against the
respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 4, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in
service forthwith with seniority and continuity. However the petitioner is not entitled to back wages
and as such the reference is ordered to be answered in favour of the petitioner and against the
6779
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
respondent. Let a copy of this award be sent to the appropriate government for publication in
official gazette. File, after completion, be consigned to records.
Announced in the open Court today on this 30th Day of November 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
__________
Ref. 37 of 2015
Sh Sanjay Kumar V/s Secy. Bhojia Dental College, Baddi.
30.11.2015
Present:- None.
It is 10.30 AM but none appeared for petitioner as well as respondent. Be awaited.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge
Labour Court, Shimla.
Case Called again
Present:- None.
It is 12:15 PM. Case called twice but none appeared on behalf of the petitioner as well as
respondent. Be called after lunch.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge
Labour Court, Shimla.
Case called after lunch
30-12-2015.
Present: None.
Today, the case is fixed for settlement but neither the petitioner nor his authorized
representative has appeared before this Court. As per the reference, received from the
appropriate government, the case of the petitioner is that he was illegally terminated by the
respondent without complying with the provisions of the Industrial Disputes Act, 1947. On
the previous date of hearing, Shri A.K. Sharma, AR for the petitioner has appeared and
stated that the matter has been settled with the respondent and the case was fixed for placing
on record the settlement. However, today none has appeared on behalf of the petitioner
before this Court. Moreover, the petitioner has failed to lead any evidence before this Court.
Moreever, the petitioner has failed to lead any evidence before this Court in support of his
claim petition, in order to show that his services have been illegally terminated by the
respondent without complying with the provisions of the Insustrial Disputes Act, 1947. Hence,
6780
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
in the absence of any evidence on record, the claim of the petitioner fails and is hereby
dismissed and as such the reference is answered against the petitioner. Let a copy of this
order/award be sent to the appropriate government for publication in the official gazette.
File, after completion, be consigned to records.
Announced:
30-11-2015
Sd/-
(SUSHIL KUKREJA)
Presiding Judge
Labour Court, Shimla.
___________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL
TRIBUNAL-CUM- LABOUR COURT, SHIMLA.
Ref. no.
: 80 of 2014.
Instituted on
: 27.12.2014.
Decided on
: 30.11.2015.
Sunil Kumar Mehta S/o late Shri K.K Mehta R/o RZ 114, Lokesh Park, Najafgarh, South
West New Delhi.
. . .Petitioner.
VS.
M/s Cyper Pharma, Village Gullarwala, Sai Road Baddi District Solan, HP through its
Managing Director.
. . .Respondent.
Reference under section 10 of the Industrial Disputes Act, 1947.
For petitioner : Shri R.K Khidtta, Advocate.
For respondent : Already ex-parte.
AWARD
The reference, for adjudication, is as under:
“Whether termination of services of Shri Sunil Kumar Mehta R/o RZ 114, Lokesh Park
Near New DTC Terminal, Najafgarh New Delhi-110043 Local address C/o Colonel
Bhagat Ram Village Swaraj (Labana) near Sakuntla Guest House, Sai Road Baddi,
District Solan, HP w.e.f. 12.6.2013 by the employer/Managing Director M/s Cyper
Pharma, Village Gullarwala, Sasi Road Baddi, District Solan, HP without complying
with the provisions of the Industrial Disputes Act, 1947 as alleged by the worker 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. By filing claim petition, the petitioner challenged his termination to be illegal on the
ground that he was engaged as Analytical Chemist (Q.C) Manager w.e.f. 1.12.2011 on monthly
salary of Rs. 40,000/- and worked as such till 11.6.2013. The work and conduct of the petitioner
always remained upto the mark of the concerned official. On 12.6.2013, the services of the
petitioner had been terminated without following the mandatory provisions of the Industrial
6781
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Disputes Act, 1947 (hereinafter referred to as Act) as neither any notice nor retrenchment
compensation had been paid to the petitioner. It is further stated that the petitioner is a workman as
defined under the provisions of the Act as he used to work manually with the respondent company.
The salary for the month of May, 2013 and twelve days of the June, 2013 have not been paid to the
petitioner which comes to Rs. 52365/- and the company is bound to pay the salary of the petitioner
for the aforesaid period with interest. The petitioner visited the office of the respondent number of
times for his reengagement but of no avail. The termination of the services of the petitioner is
totally illegal as the company has not followed the mandatory provisions of sections 25-F, 25-G,
25-H and 25-N of the Act. Even, no warning or chargesheet was ever served to the petitioner. The
petitioner had completed 240 days in each calendar year and junior to him are still working with the
company. The work which the petitioner was performing with the company is still available and the
petitioner is unemployed w.e.f. 12.6.2013. Against this back-drop a prayer for his reinstatement
with all consequential service benefits including full back-wages along-with wages for the month
of May, 2013 and 12 days of the June, 2013 which comes to Rs. 52,365/- with interest @ 12% per
annum along-with costs.
3. Since, the respondent had refused to accept the notice issued by this Court, hence, vide
order dated 9.9.2015, it had been proceeded against ex-parte.
4. Thereafter, the petitioner led exparte evidence. The petitioner himself appeared into the
witness as PW-1 and tendered his affidavit Ex. PW-1/A in evidence wherein he reiterated almost all
the facts as narrated in the claim petition. He also tendered, in evidence, the notices of Labour
Inspector, Ex. PW-1/B and Ex. PW-1/C, copy of demand notice Ex. PW-1/D, copies of test request
form finished product, Ex. PW-1/E and Ex. PW-1/F and copy of Bank Account Sheet Ex. PW-1/G.
5. I have heard the Learned Counsel for the petitioner and also gone through the record of
the case carefully.
6. Since, the evidence led by the petitioner remained un-rebutted as the respondent did
not appear to contest this testimony of the petitioner, his evidence is sufficient to prove that he was
engaged as Analytical Chemist (Q.C) by the respondent company w.e.f. 1.12.2011 and had worked
till 11.6.2013. The services of the petitioner have been terminated by the respondent w.e.f.
12.6.2013. He had worked for 240 days in the preceding calendar year under the respondent. So,
prior to his termination, the respondent was under the legal obligation to comply with the
provisions of the section 25-F of the Industrial Disputes Act. But, no such compliance was made by
the respondent, hence, there is violation of section 25-F of the Act, on the part of respondent. As a
result, the termination of petitioner is not sustainable under the eyes of law and is hereby set aside.
Hence, the petitioner is held entitled for reinstatement in service with seniority and continuity.
7. It has also been stated by the petitioner that his salary for the month of May, 2013 and
twelve days of June, 2013 have not been paid by the respondent. However, to prove this fact, no
satisfactory evidence has been led by the petitioner. The petitioner has only placed on record the
photocopy of Bank account sheet Ex. PW-1/G. However, this document is not sufficient to
establish the fact that he was not paid the salary for the month of May, 2013 and twelve days of
June, 2013. Therefore, in the absence of any satisfactory evidence on record, it cannot be said that
the petitioner was not paid the salary for the month of May, 2013 and twelve days of June, 2013.
8. Now, the next question which arises for consideration, before this Court is as to
whether the petitioner is entitled to full back wages as contended by the learned counsel for the
petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim
6782
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
Mirza, the Hon’ble Supreme Court has held that once the order of termination of services of an
employee is set-aside, ordinarily, the relief of reinstatement is available to him. However, the
entitlement of an employee to get reinstated does not necessarily result in payment of full or partial
back-wages, which is independent of reinstatement. It has further been held by the Hon’ble
Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full
back wages cannot be granted mechanically, upon an order of termination be declared illegal. It is
further held that reinstatement must not be accompanied by payment of full back wages even for
the period when the workman remained out of service and contributed little or nothing to the
Industry.
9. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
10. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement. Except
for the bald assertion of the petitioner, there is no evidence on record led by him that he was not
gainfully employed after his disengagement. Therefore, in view of the entire evidence, on record,
coupled with the rulings (supra), I have no hesitation in holding that the petitioner is not entitled to
any back-wages.
11. In the light of my aforesaid observation, the claim of the petitioner is allowed and the
reference is answered accordingly to the effect that the petitioner is ordered to be reinstated in
service with seniority and continuity but without back wages. Let a copy of this award be sent to
the appropriate government for publication in official gazette. File, after completion, be consigned
to records.
Announced in the open court today this day of 30th November, 2015.
Sd/-
(SUSHIL KUKREJA)
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
6783
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
In the Court of Shri Gian Sagar Negi, Sub-Divisional Magistrate, Shimla (R),
District Shimla (H. P.)
Shri Bhim Parkash s/o Shri Dhani Ram Sharma, r/o Village Dargot (Kajalari), P.O. Nehra,
Tehsil & District Shimla, Himachal Pradesh.
Versus
General Public
.. Respondent.
Whereas Shri Bhim Parkash s/o Shri Dhani Ram Sharma, r/o Village Dargot (Kajalari),
P.O. Nehra, Tehsil & District Shimla, Himachal Pradesh has filed an application along with
affidavit in the court of undersigned under Section 13(3) of the Births & Deaths Registration Act,
1969 to enter the date of birth of his son named—Mr. Ramesh Sharma s/o Shri Bhim Parkash s/o
Shri Dhani Ram Sharma, r/o Village Dargot (Kajalari), P.O. Nehra, Tehsil & District Shimla,
Himachal Pradesh in the record of Secy., Birth and Death, Gram Panchayat Ganewag, Shimla.
Sl.
No.
Name of the family members
Relation
Date of birth
1.
Mr. Ramesh Sharma
Son
15-08-1991
Hence, this proclamation is issued to the general public if they have any objection/claim
regarding entry of the name & date of birth of above named in the record of Gram Panchayat
Ganewag (Nehra) may file their claims/objections on or before one month of publication of this
notice in Govt. Gazette in this court, failing which necessary orders will be passed.
Issued today 20-11-2015 under my signature and seal of the court.
Seal.
Sd/-
Sub-Divisional Magistrate,
Shimla (R), District Shimla.
__________
CHANGE OF NAME
I, Neelam Sharma w/o Shri Raj Kumar, r/o Village Dangoli, Tehsil & District Una (H. P.)
has changed my name from Neelam Sharma to Harsha Sharma. All concerned may note please.
HARSHA SHARMA,
w/o Shri Raj Kumar,
r/o Village Dangoli,
Tehsil & District Una (H. P.)
6784
jkti=] fgekpy izns'k] 13 tuojh] 2016@23 ikS"k] 1937
vkcdkjh ,oa djk/kku foHkkx
vkns”k
f'keyk&2] 8 tuojh] 2016
la[;k%bZ,Dl,u&,Q¼16½&3@99&okSY;we&I.—fgekpy izns”k ds jkT;iky] fgekpy izns”k
euksjatu&dj ¼pyfp= izn”kZu½ vf/kfu;e] 1968 ¼1968 dk vf/kfu;e la[;kad 11½ dh /kkjk 6 dh
mi&/kkjk ¼2½ ds lkFk ifBr fgekpy izns”k euksjatu “kqYd vf/kfu;e] 1968 ¼1968 dk vf/kfu;e la[;kad
12½ dh /kkjk 12 dh mi&/kkjk ¼3½ ds v/khu muesa fufgr “kfDr;ksa dk iz;ksx djrs gq, fMQ] /keZ”kkyk
varjkZ’Vªh; fQYe egksRlo dks 05-11-2015 ls 08&11&2015 Rkd /keZ”kkyk esa fQYe egksRlo ds vk;kstu gsrq
iwoksZDr vf/kfu;eksa ds v/khu euksjatu “kqYd vkSj euksjatu dj ds lank; ls NwV iznku djus ds ,rn~ }kjk
vkns”k nsrs gSaA
vkns'k }kjk]
gLrk{kfjr@&
vfr0 eq[; lfpo ¼vkcdkjh ,oa djk/kku½A
__________
[Authoritative English text of this Department Notification No. EXN-F(16)-3/99-Vol.-I dated
08-01-2016 required under clause (3) of article 348 of the Constitution of India.]
EXCISE AND TAXATION DEPARTMENT
ORDER
Shimla-171002, the 8th January, 2016
No. EXN-F(16)-3/99-Vol.-I.—In exercise of the powers vested in him under sub-section(3)
of section 12 of the Himachal Pradesh Entertainments Duty Act, 1968(Act No. 12 of 1968) read
with sub-section (2) of section 6 of the Himachal Pradesh Entertainments Tax(Cinematograph
Shows) Act,1968 (Act No.11 of 1968), the Governor, Himachal Pradesh hereby order to exempt
diff, Dharamshala International Film Festival from the payment of entertainment duty and
entertainment tax under the aforesaid Acts for the organization of film festival at Dharamsala w.e.f
05.11.2015 to 08.11.2015.
By order,
Sd/-
Addl. Chief Secretary (E&T)
fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr
bysDVªkWfud gLrk{kfjr jkti=] oSclkbV http://rajpatrahimachal.nic.in ij miyC/k gS ,oe~ vkWuykbu lR;kfir fd;k tk ldrk gS