jkti=] fgekpy izns'k

fgekpy izns'k jkT; 'kklu }kjk izdkf'kr

eaxyokj] 23 Qjojh] 2016@4 QkYxqu] 1937

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 21^st January, 2016

No: Sharm (A) 6-2/2014 (Awards) D/Shala.—In exercise of the powers vested under

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

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

230&jkti=@2016&23&02&2016 ¼7929½

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

Himachal Pradesh:—

Sr.

No.

Ref. No.

Petitioner

Respondent

Date of Award/

Order

05/14

Kartar Singh

Director of Research HPKVV

17-11-2015

06/14

Tilak Raj

Director of Research HPKVV

17-11-2015

07/14

Ashwani Kumar

Director of Research HPKVV

17-11-2015

08/14

Rajesh Kumar

Director of Research HPKVV

17-11-2015

09/14

Kamaljeet Chauhan

Director of Research HPKVV

17-11-2015

14/14

Parveen Kumar

Director of Research HPKVV

17-11-2015

106/14

Shammi Kumar

Director of Research HPKVV

17-11-2015

107/14

Suresh Chand

Director of Research HPKVV

17-11-2015

108/14

Parkash Chand

Director of Research HPKVV

17-11-2015

10.

168/13

Guddi Devi

E.E.HPPWD, Joginder Nagar

30-11-2015

11.

266/14

Vishal Kumar

R.M. HRTC, Chamba

30-11-2015

12.

01/15

Paras Ram

D.F.O. Chamba

30-11-2015

13.

02/15

Vias Dev

D.F.O. Chamba

30-11-2015

14.

343/14

Megh Raj

E.E. HPPWD, Kangra

30-11-2015

15.

247/13

Pamplu Ram

D.F.O. Suket

30-11-2015

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

_________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No.

: 05/2014

Date of Institution

: 04.01.2014

Date of Decision

: 17.11.2015

Shri Kartar Singh s/o Shri Achal Singh, r/o Village Ladho, P.O. Panchrukhi, Tehsil

Palampur, District Kangra, H.P.

….Petitioner.

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Versus

The Director of Research, Choudhery Sarwan Kumar Himachal Pradesh Krishi

Vishvavidyalaya, Palampur, District Kangra, H.P.

….Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent

: Sh. Rahul Gupta, Adv.

AWARD

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

adjudication:

“Whether termination of the services of Shri Kartar Singh S/O Shri Achal Singh, R/O

Village Ladho, P.O. Panchrukhi, Tehsil Palampur, District Kangra, H.P. w.e.f. 31.3.2012

vide order No. QSD/OA/CSKHPKV/206-56/257-85 dated 27.02.2012 by the Director of

Research, Choudhery Sarwan Kumar, Himachal Pradesh Krishi Vishvavidyalaya, Palampur,

District Kangra, H.P., without complying with the provisions of the Industrial Disputes Act,

1947, is legal and justified? If not, what amount of back wages, seniority, past service

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

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as set up in the claim petition reveal that petitioner had been appointed by

the respondent on daily wage basis w.e.f. April, 2002 who had been paid the daily rate as fixed by

the State Govt. from time to time. It is alleged that petitioner had continuously worked without

breaks with the Agro Forestry and Organic Agriculture department upto May, 2006 but while

appointing him, no letter was issued and at the same time terms and conditions were not settled.

Averments made in the claim petition further revealed that service condition of the petitioner had

been changed by the respondent by engaging him as supporting staff in the same department on

fixed salary w.e.f. June, 2006 instead of daily rate which he was receiving earlier and thus the

petitioner continued to work under the Incharge of Agro Forestry and Organic Agriculture

department upto 31st March, 2012. It further remains the case of petitioner that petitioner had

completed 240 days in each calendar year w.e.f. April, 2002 to 31.3.2012 working with the same

employer and was in continuous services envisaged under Section 25-B of the Industrial Disputes

Act, 1947 (hereinafter called ‘the Act’ for brevity). It also remains the case of petitioner that

respondent had not issued any attendance card, casual card or wage slip during period aforesaid

besides maintained that the work and conduct of petitioner was found satisfactory who had been

not given any chance for complaint to the management of respondent as well as to the Incharge or

say head of department. The grievances of petitioner remains that the respondent had terminated

service of petitioner along-with other similarly situated employees w.e.f. 31.3.2012 to 27.2.2012

vide letter no.QSD-DR-/4-13 (Tech) 2012/1951-53, dated 22nd March, 2012. It is alleged that even

at the time of termination of the services, no retrenchment compensation envisaged under Section

25-F (b) of the Act was paid and thus termination without compliance of the above stated provision

is null, void ab-initio. It is alleged that despite availability of works and funds with the department,

services of the petitioner had been deliberately terminated without any misconduct on his part and

thus the same was in violation of principle of natural justice. Averments made in the claim petition

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also revealed that several persons junior to claimant/petitioner namely Vinod Kumar, Rajeev

Kumar, Suresh Kumar, Krishan Kumar, Ashwani Kumar, Ashok Kumar, Om Prakash, Vipan

Kumar and Ravinder Kumar had been retained in service and while doing the same, respondent had

not followed the principle of ‘Last come First go’ envisaged under Section 25-G of the Act. It also

remain the case of the petitioner that after his termination, respondent had appointed fresh hands in

place of petitioner namely Anurag Parmar, Santosh Kumar, Bablu, Om Prakash, Rattan Chand,

Vinod Kumar, Rajeev Kumar and in this manner, petitioner had not been given an opportunity for

reemployment and thus respondent had violated the provisions of Section 25-H of the Act. It is also

alleged that petitioner had joined union in the year 2009 and due to union activities, petitioner’s

services had been unlawfully terminated by the respondent and thus act of respondent in

terminating of services of petitioner was unfair labour practice as stipulated in Schedule Vth Clause

4 (a) and (b) of the Act. Not only this, petitioner also alleges discrimination on the part of

respondent as one Kulwant Singh s/o Shri Nek Ram, r/o VPO Jhareth, Tehsil Palampur, District

Kangra and Kartar Chand s/o Shri Hari Singh r/o Village Oder, P.O. Sungal, Tehsil Palampur,

District

Kangra

were

working

the

post

supporting

staff

vide

letter

no.

AFE/SKHPK/2003/KAR/206-21/1179-94 dated 19.6.2006 in the department of Agro Forestry and

Environment and both these workmen have been regularized after completion of eight years of

service. The grievances of petitioner also remains that one Kumari Promila Devi d/o Shali Ram

who was appointed on contract basis on fixed salary too has been regularized as clerk in regular

pay scale after completion of eight years of service of State Govt. vide letter no. 66984-97 dated

19.7.2010. Thus, claiming his termination, petitioner alleges arbitrariness and act of respondent as

unconstitutional in violation of mandatory provisions of the Act which has been prayed to be set

aside. Accordingly, petitioner claims that his termination vide order dated 27.2.2012 w.e.f.

31.3.2012 be set aside and quashed and respondent be directed to reinstate petitioner in service with

seniority, continuity in service and full back wages alongwith consequential benefits including

litigation costs quantified at Rs.10,000/- besides the petitioner has also prayed for regularization

service after completion of eight years of service in the regular pay scale.

4. The respondent contested claim petition, filed reply inter-alia taken preliminary

objections qua maintainability, locus standi, cause of action, jurisdiction, petitioner not falling

within the definition of workman (diharidar) as he had never been engaged on muster roll basis in

the records of the respondent university. It is specifically stipulated that the duties performed by

petitioner were on contract basis for which bill of the work was raised and the same was paid at the

rate not below the govt. rate. The petitioner is alleged to have been engaged for a particular period

and his employment was co-terminus with the project and that petitioner while filing the claim

petition has not approached the court with clean hands. On merits, respondent has asserted that

according to policy of government of H.P. notified by Department of Finance order no. FIN.1-

C(14)-1/83 dated 8.7.1998 adopted by university vide notification no. 1-2002/HPKV/97-78833-946

dated 13.11.1998 the policy/system to engage DPL i.e. daily paid labourer was banned. Thus,

petitioner had never been engaged on daily paid labourer on muster roll basis in the year 2000 as

has been claimed by him. It is also alleged that petitioner was engaged on contract basis in the year

2003 who used to raise bill of work performed and his wages were paid from the funds of project

funded by ICAR/GOI and that no payment were paid from the grant-in-aid of the respondent

university. It is alleged that the petitioner had been engaged on daily paid labourer on muster roll

basis his name would have figured in the seniority list of university circulated in 2006 and later in

the year 2008. It is further alleged that an ad-hoc project on Organic Farming in hill agriculture

under the plan scheme (strengthening and development of agriculture education) Niche Area of

Excellence was sanctioned to the respondent university by the Government of India in which some

position of supporting staff (field workers) were provided on fixed project fellowship of Rs.2,500/-

per month and these position for which the petitioner had applied and was selected and offered post

of supporting staff vide letter no. AFE/CSKHPKV/2003/CAR-2006-21/1179-94 dated 19.6.2006

on terms and conditions contained therein. Thereafter, again advertised the position of supporting

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staff/field helper on project fellowship of Rs.4000/- fixed per month for which petitioner had

applied and selected and was offered post of field helper job. Thereafter, petitioner had applied

offered appointment on monthly salary of Rs. 2500/- in the same department and petitioner/

claimant was notified termination of adhoc research project in which petitioner was last engaged

the services of petitioner had been terminated on 31st March, 2012 afternoon after serving him

notice dated 27.2.2012. It is alleged that petitioner served one month advance notice of termination

of service before termination by the head of project in which he had been terminated. In so far as

allegation of regularization of Kulwant Singh and Kartar Chand are concerned, respondent in his

reply specifically alleged that their services had been regularized according to policy of State Govt.

and both these official had worked since 1994. At the same time, Smt. Promila Devi d/o Sh. Shali

Ram had been stated to be appointed data entry operator on contractual basis and her services had

been regularized on the basis of policy framed by the govt. of H.P. vide letter no. PER (AP)-C-

F(1)-1/2010 dated 7.5.2010 and as such case of petitioner had no direct nexus with Smt. Promila

Devi. Thus, while denying cause of action as stated respondent has maintained that engagement of

petitioner was co-terminus with the specific project in which he was appointed as supporting field

staff on fixed monthly salary till completion of project and thus no provisions of the Industrial

Disputes Act was stated to have been infringed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.

6. In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed evidence. On the other hand,

repudiating the evidence led by the petitioner, respondent examined RW1 Shri Manoj Kumar, the

then Registrar, CSKHPKV, Palampur as RW1, RW2 Shri S.P. Sharma the Dean CSK HPKV

Palampur tendered/proved his affidavit Ex. RW1/A and another affidavit Ex. RW2/A, letter dated

4.10.2007 Ex. RW1/B, Ex. RW1/C copy of letter dated 25.5.2009, Ex. RW1/D notification dated

13.11.1998, Ex. RW1/E copy of letter dated 8.7.1998, office order dated 17.2.1999 Ex. RW1/F, Ex.

RW1/G copy of notification dated 26.4.1999, Ex. RW2/B copy of Award dated 30.6.2014 and

closed the evidence.

7. I have heard the ld. counsel representing for the parties, gone through records of the

case carefully relevant for disposed of this case.

8. From the contentions raised, following issues were framed by my ld. Predecessor on

27.02.2015 for determination:

1. Whether the termination of the services of the petitioner by the respondent w.e.f.

31.03.2012 is/was improper 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 petitioner is/was daily paid worker of the respondent as alleged. If so, its

effect?

... OPR.

4. Whether the petitioner has no locus standi to file the case as alleged?

...OPR.

5. Whether this court has no jurisdiction to file the present case as alleged?

...OPR.

6. Whether the claim petition is not maintainable in the present form?

...OPR.

7. Whether the petitioner has no cause of action to file the present case as alleged?

...OPR.

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8. Whether the petitioner has not approached the Court with clean hands as alleged. If so,

its effect?

...OPR.

9. Whether the petitioner has suppressed the true and material facts from the Court as

alleged. If so, its effect?

...OPR.

10. Relief.

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

Issue No. 1 : No

Issue No. 2 : No

Issue No. 3 : Yes

Issue No. 4 : Yes

Issue No. 5 : No

Issue No. 6 : No

Issue No. 7 : No

Issue No. 8 : No

Issue No. 9 : No

Relief. : Claim petition is dismissed per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 TO 3

10. All these issues have been taken up together for discussion being interconnected which

can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that claimant/petitioner claims to have worked

from year 2002 to 2006 as beldar (deharidar) as daily wage and thereafter from 2006 to 31.3.2012

in various projects of the respondent. Thus, claiming to have rendered more than 12 years of

continuous service completing 240 days in each calendar year, the petitioner has alleged that he

was illegally and unlawfully retrenched by the respondent. Before proceeding further, it would be

apt to mention here that information under RTI Act Ex. P1was supplied which showed that

petitioner had worked from January, 2006 to July 2006 on work contract basis and later he

worked for 163 days on fixed monthly salary basis co-terminus with the project. It is admitted

case of the parties that daily paid labourer had not been engaged by the respondent department after

notification dated 21.4.1999 issued by Controller of HPKV Palampur. It is equally admitted case of

the parties that name of the claimant/petitioner did not figure in the seniority list of daily wage

workers although respondent had circulated tentative seniority list in the year 2006 which is Ex.

RW1/B and thereafter final seniority list of daily wager worker/helpers as on 31.3.2008 Ex. RW1/C

is final seniority list as on 31.3.2008in which the name of petitioner did not figure. It is equally

admitted case of the petitioner that he had not raised any protest or objection qua not inclusion his

name either of the list as aforestated till date.

12. Ld. counsel for the petitioner has relied upon judgment of Hon’ble Supreme Court

reported in 2015 LLR 337 titled as Mackinon Machenize & Company Ltd. vs. Mackinon

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Employees Union, in which Hon’ble Apex Court has held that non preparation of seniority list or

non displaying of seniority list is breach of Section 25-G of the Industrial Disputes Act. I have gone

through this judgment which is not applicable to present case as respondent had displayed as well

as prepared seniority list per evidence on record and it is not material to consider at this stage

reasons for non inclusion of the name of claimant/petitioner.

13. Ld. counsel for the petitioner has further relied upon the judgment of Hon’ble Apex

Court reported in 2015 LLR 95 titled as Sudarshan Rajpoot vs. U.P. State Road Transport

Corporation in which Hon’ble Apex Court has dealt with aspect of termination of contractual

appointment. In this case, it was held that respondent had failed to prove that the appellant was

appointed on contractual basis by producing any cogent evidence. It was further held that even

otherwise the appellant had worked for more than three years and 240 days in a year and his

removal from service amounted to unfair labour practice. The case in hand clearly distinguishable

from the case of Hon’ble Apex Court having different facts altogether before this court as petitioner

is established to have worked initially on work contract basis and thereafter on fixed monthly

salary. Needless to mention here that after the year 2006, the petitioner had applied time and again

for seeking job of supporting field staff on fixed monthly salary and therefore he continued to be

contractual employee and thus the judgment of Sudarshan Rajpoot (2015) supra would not be

attracted in this case.

14. The crux of the problem which has cropped up for adjudication before by this court is

to determine relationship between claimant/petitioner and the respondent. If petitioner is found to

have worked on contractual basis as has been argued by ld. counsel for respondent, petitioner

would not fall under the definition of the workman in view of specific provision envisaged under

Section 2(oo) dealing with retrenchment as definition of workman is to be read with retrenchment

of workman under Section 2(oo) of the Industrial Disputes Act. Section 2 (bb) provides the

termination of services of workman with result of nonrenewal of contract of employment would not

constitute retrenchment. In the case in hand, there is no reliable evidence on record establishing that

the name of claimant/petitioner existed in muster roll and when he was engaged as field staff vide

appointment offer vide Ex. RB dated 19.6.2006 subsequent offer of appointment as field staff dated

16.4.2010 Ex. RC and lastly vide Ex. RD it is established on record that petitioner had worked on

contractual basis while accepting the offer of appointment by the respondent and in preceding 12

months he had not been engaged as daily wage basis. If petitioner had worked as supporting field

staff and received fixed monthly salary from 2006 to 2012, then by no stretch of imagination, he

would be falling in the definition of workman and at the same time, version of claimant/petitioner

that he had worked regularly and competed 240 days cannot be relied. It would be also pertinent to

mention here that the petitioner claimed to have worked on daily wage basis but vide Ex. P1

information furnished under RTI revealed that he had worked monthly on daily paid basis since

year 2006. Thus, plea of petitioner to have been engaged by respondent as daily wage basis in 2000

gets falsified from document referred to above.

15. Ld. counsel for the respondent has taken through cross-examination of petitioner in

which he has specifically admitted that while being employed as daily wage, he had not produced

any record as he has claimed that the records was with the department. He has further admitted in

cross-examination that his name was not sponsored by the employment exchange. He has shown

ignorance if he had ever been engaged on muster roll but maintained that from very beginning he

had been working with agro forestry and organic farming department. He has admitted in cross-

examination that workmen whose name was entered in the muster roll invariably gets incorporated

in the seniority list but no seniority list showing petitioner’s name has been provided by his

department. Significantly, he has admitted that correctness of seniority list prepared by the

respondent/department as he has admitted in cross-examination that he did not raise any objection

qua seniority list which had been circulated twice. Not only this, petitioner admitted that after 1998

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university had not engaged any one as daily paid labourer, then how he was appointed or engaged

in April, 2002 cannot be accepted as correct rather it falsified the claim of petitioner. It may

pertinent to state here that petitioner had put his signature on Ex. RA bill voucher vide which he

had received payment besides he has also admitted on oath that on 10th March, 2008 in pursuance

to office order, he was appointed as supporting staff on monthly salary of Rs.3500/- on the basis of

application submitted by him. Similarly, vide Ex. RB, Ex. RC petitioner was appointed on fixed

monthly salary however vide Ex. RD his contract of employment was terminated consequent upon

termination of project in which petitioner worked and other important aspect which goes to root of

the case as admitted by the claimant/petitioner on oath is that all workmen similarly situated were

being engaged through contractor which goes to show that respondent/employer had stopped direct

recruitment and workmen were being supplied by the contractor.

16. Shri Manoj Kumar, registrar HPKV Palampur has shown his ignorance about the

number of employees who have been regularized as he could speak so on being shown record. He

has also shown his ignorance qua number of employees who were working contractual fixed

monthly salary. He has further revealed in cross-examination that project ICAR was with the

Central Government and he has admitted that no retrenchment compensation to the claimant/

petitioner was paid but clarified that it was not required under the law. He has maintained that

petitioner worked as seasonal worker in the project. On the point of regularization of Kulwant

Singh and Kartar Singh this witness has clarified the same by stating that they had been engaged as

daily waged workers and were regularized because they were working since 1994 and after 1998,

no daily paid labourer were employed by the department. About Smt. Promila Devi RW1 has

maintained that she was engaged as data entry operator on contractual basis on fixed amount as per

Ex. P-2. RW1 in his cross-examination maintained that respondent had engaged Smt. Promila Devi

was also casual worker and her regularization in pursuance to sanction from finance department.

17. In his affidavit RW2 Shri S.P. Sharma, Dean, CSK HPKV Palampur, District Kangra

has stated that funding agencies was released budget under different heads such as salary head,

non-recurring contingency and recurring contingency and labourers were engaged from time to

time. Said Shri S.P. Sharma, RW2 also specifically stated that the appointment of

claimant/petitioner was for a limited tenure. Even otherwise also, Ex. P4 statute of Choudhery

Sarwan Kumar H.P. Krishi Vishvavidyalaya also defines ‘employees’ under rule 1.4 dealing with

definition reads as under:-

“Employees means whole time employees (including officers and teachers) other than

part time employees, honorary employees or those paid from contingencies”

18. Ld. counsel for respondent has contended with vehemence that even definition of

‘employees’ is defined under Statutes of University excludes part time employees and those paid

from contingencies. RW2 Shri S.P. Sharma has stated in his affidavit that research projects are

sanctioned for specified period and funding agencies provide funds for existing those projects. He

has further stated that workmen/labourers are engaged in short term projects sanctioned by different

funding agencies from time to time for scientific research and university has no control to extend

the projects when its objectives are achieved or project is closed. Be it noticed that these facts on

oath have remained un-repudiated. RW2 has also stated that project in which petitioner was

appointed was closed on 31.3.2012.

19. In State of Himachal Pradesh, through the Secretary (Rural Development) to the

Govt. of Himachal Pradesh vs. Ashwani Kumar & Ors., the Hon’ble Apex Court had held that if

worker was appointed specifically to work in project, then on closure of project due to non-

availability of funds the temporary employees engaged in the project were not entitled to

regularization. Thus, there could not be relationship of deharidar/workman of claimant/petitioner

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with respondent as salary and remuneration was paid and at the same time the name of

claimant/petitioner did not appear in the muster roll as well as in the seniority list. As such, it could

not be construed by any stretch of imagination that claimant/petitioner was beldar engaged on

muster roll. Having not established to have worked as beldar on muster roll and respondent had

succeeded in establishing that claimant/petitioner was appointed on fixed monthly salary, it would

be unsafe to hold that respondent while terminating the services of petitioner had violated

mandatory provisions of Section 25-F of the Industrial Disputes Act.

20. In so far as engagement of juniors to that of present claimant/petitioner is concerned,

suffice would be state here that claimant/petitioner had not worked on muster roll basis and also not

worked as beldar besides his name did not figure in the seniority list as observed forgoing paras. It

cannot be stated that any person junior to petitioner had been retained in service and

claimant/petitioner had been terminated. Thus, there is even no violation of the provisions of

Section 25-G of the Industrial Disputes Act. At the same time, there can also be no violation of the

provisions of Section 25-H of the Industrial Disputes Act as claimant/petitioner claimed that juniors

have been engaged and he had not been offered for reemployment. At the cost of repetition, it may

not be erroneous to state here that petitioner had not been appointed as beldar on muster roll whose

name did not figure in the seniority list and therefore even if some new persons have been engaged,

petitioner could not be stated to have been denied opportunity offer of employment within the

meaning of Section 25-H of the Industrial Disputes Act.

21. Ld. Authorized Representative for the petitioner had relied upon the judgment of

Hon’ble Apex Court reported in 2002 LLR 928 titled as M/s. National Aluminimum Co. Ltd. vs.

Deepak Kumar Panda & Ors. in which Hon’ble Apex Court observed that employee can legally

enforce his right to continue in service particularly when junior to him were continuing to work. In

the case in hand, it is not attracted as no juniors were proved to be working with the respondent.

Authorized Representative for the claimant/petitioner further relied upon the judgment of Hon’ble

Apex Court reported in 2015 LLR 337 titled as Mackinon Machenize & Company Ltd. vs.

Mackinon Employees Union in which the Hon’ble Apex Court has held that non-preparation of

seniority list or non-display of seniority list is breach of the provisions of Section 25-G of the

Industrial Disputes Act. I have gone through the aforestated judgment which would not be attracted

in the case as the non inclusion of the name of claimant/petitioner in the seniority list was due to he

being on contractual appointment and was not required to be shown in the seniority list. Otherwise

also, seniority list had been prepared twice by respondent which has been circulated from time to

time but claimant/petitioner had never taken objection as he admitted in cross-examination and thus

he is now estopped to challenge the correctness of seniority list.

22. Enough has emphasized by the ld. Authorized Representative of claimant/petitioner on

judgment of Hon’ble Apex Court reported in 2003 LLR 817 titled as M/s. Bharat Heavy

Electrical Limited vs. State of Uttar Pradesh & Ors. in which Hon’ble Apex Court has held that

non production of records pertaining to payments made to the gardeners either by the company or

the contractor will lead to drawing of adverse inference in establishing direct relationship of

employer and employees between the principal employer and the workers alleged to be engaged by

the contractor more so when photocopies for attendance and payments made have been produced

by the gardeners. I have gone through this judgment but the case in hand, no record has been

produced except the one bill by the claimant/petitioner. Be it noticed that respondent has fairly

produced all relevant records concerning claimant/petitioner moreso when there has been no

objection from side of petitioner that documents sought be produced have not been produced or

withheld and as such judgment 2003 (supra) does not come to the rescue of the claimant/petitioner.

For similar reason, judgment of Hon’ble Apex Court reported in 2015 LLR 785 titled as Gauri

Shanker vs. State of Rajasthan relied upon by Ld. Authorized Representative is also not attracted

in the facts and circumstances of the case. In view of the foregoing discussions keeping in view of

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definition of workman as defined under Section 2(s) read with Section 2(oo) (bb) and other

documentary evidence on record, claimant/petitioner has failed to prove that he was daily wage

worker engaged by respondent as no muster roll was prepared qua his engagement and at the same

time his name also did not figure in seniority list and as such it is further held that respondent had

not violated the provisions of Sections 25-F, 25-G and 25-H of the Industrial Disputes Act.

Accordingly, issue no.1 is answered in negative and for similar reason issue no. 2 also answered in

negative against the petitioner and in favour of respondent. In view of my findings foregoing paras,

issue no.3 is answered in favour of respondent as it is not established that petitioner was daily paid

worker of the respondent. Accordingly, issues no. 1 to 3 are decided in negative against the

petitioner and in favour of respondent.

ISSUE NO.4

23. Ld. counsel for the respondent has raised the objection on the locus standi of the

petitioner to sue but as the petitioner was employee of respondent whose services had been

terminated, he could legitimately challenge the action of the respondent management had he

succeeded in establishing that the action of respondent was illegal and unjustified. Thus, from facts

on record, it cannot be stated that petitioner has no locus standi to sue respondent. Issue in hand is

answered in negative in favour of petitioner and against the respondent.

ISSUE NO. 5

24. In view of what has been held under the foregoing issues, nothing has been brought of

this court, as to how this Court has no jurisdiction to entertain the claim of the petitioner. Issue in

hand is thus decided in negative and accordingly held in favour of the petitioner and against the

respondent.

ISSUE NO. 6

25. On the plea non-maintainability of the claim petition under Section 10 of the Industrial

Disputes Act, ld. counsel representing respondent department has failed to allege in reply in what

manner petition is not maintainable. Otherwise also, from pleadings and evidence on record, no

inference of claim petition being not maintainable could be raised against claimant/petitioner. As

such, issue in hand is answered in negative against the respondent and in favour of petitioner.

ISSUE NO. 7

26. In view of the findings on the above issues petitioner has cause of action, moreso when

he alleged termination of service by respondent illegally. Hence, this issue is decided in favour of

the petitioner and against the respondent.

ISSUE NO. 8

27. It is not shown as to how the petitioner has not come to the Court with clean hands. No

evidence has been led on this issue. Therefore, this issue is decided accordingly.

ISSUE NO. 9

28. It is not shown by the respondent as to what facts have been withheld by the petitioner

from the court. Neither any evidence has been led nor any submissions have been made in this

behalf by the respondent. Hence, this issue is also decided against the respondent and in favour of

the petitioner.

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RELIEF

29. As a sequel to my findings on foregoing issues claim petition is dismissed, leaving the

parties to bear their own costs.

30. The reference is answered in the aforesaid terms.

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

official gazette.

32. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 17th day of November, 2015.

Sd/-

(K.K. SHARMA)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref. No.

: 06/2014

Date of Institution : 04.01.2014

Date of Decision

: 17.11.2015

Shri Tilak Raj s/o Shri Gian Chand, r/o Village Garla Sarkari, P.O. Garla Dei, Tehsil

Palampur, District Kangra, H.P.

….Petitioner.

Versus

The Director of Research, Choudhery Sarwan Kumar Himachal Pradesh Krishi

Vishvavidyalaya, Palampur, District Kangra, H.P.

….Respondent.

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

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent

: Sh. Rahul Gupta, Adv.

AWARD

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

adjudication:

“Whether termination of the services of Shri Tilak Raj S/O Shri Gian Chand, R/O Village

Garla Sarkari, P.O. Garla Dei, Tehsil Palampur, District Kangra, H.P. w.e.f. 31.03.2012

vide order No. QSD/OA/CSKHPKV/206-56/257-85 dated 27.02.2012 by the Director of

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Research, Choudhery Sarwan Kumar, Himachal Pradesh Krishi Vishvavidyalaya, Palampur,

District Kangra, H.P., without complying with the provisions of the Industrial Disputes Act,

1947, is legal and justified? If not, what amount of back wages, seniority, past service

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

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as set up in the claim petition reveal that petitioner had been appointed by

the respondent on daily wage basis w.e.f. April, 2000 who had been paid the daily rate as fixed by