jkti=] fgekpy izns'k

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ohjokj] 10 ekpZ] 2016@20 QkYxqu] 1937

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 03^rd March, 2016

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:—

243&jkti=@2016&10&03&2016 ¼8619½

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Sr. No.

Case No:

Title of the Case

Date

of Award

31/2012

Seema Thakur V/s Head Master, Bishop Cotton

School Shimla Himachal Pradesh.

02-01-2016

10/2014

Raminder Singh V/S M/S Link Utsav Ventures.

02-01-2016

51/2012

Devi Ram V/s HPSEB Sunni.

02-01-2016

01/2015

Smt Meghna Sharma & Ors V/S M/s Wild Craft

India Pvt. Ltd Solan.

04-01-2016

17/2012

Roshan Lal V/S BDO Basantpur.

04-01-2016

43/2012

Smt Rekha Devi V/S M/S VMT Spining Company

Ltd.

12-01-2016

70/2015

Shri Surinder Pal V/S M/S Alliance Fomulations,

Baddi.

14-01-2016

80/2015

Shri

Kuldeep

Shastri

V/S

M/s

National

Pharmaceuticals.

15-01-2016

19/2012

Manu Pratap Singh V/S Commissioner, Municipal

Corp, Shimla.

20-01-2016

10.

78/2013

Devi Chand M/s DFO, Shimla & Others.

20-01-2016

11.

79/2013

Ramesh Chand V/S

-do-

20-01-2016

12.

80/2013

Dhayan Singh V/S

-do-

20-01-2016

13.

81/2013

Tej Ram V/S -do-

20-01-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

_____________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNALCUM-LABOUR COURT, SHIMLA, (H.P).

Ref No. 31 of 2012.

Instituted on. 14.6.2012.

Decided on 2.1.2016.

Seema Thakur D/o Shri Surjan Singh Thakur R/o Village & P.O Kothipura, District Bilaspur, HP.

……………Petitioner.

Vs.

The Head Master, Bishop Cotton School, Shimla-2, HP.

…………Respondent

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Reference under section 10 of the Industrial Disputes Act, 1947.

For petitioner : Shri Niranjan Verma, Advocate.

For respondent : Shri Ranvir Chauhan, Advocate.

AWARD

The following reference has been received from appropriate government for adjudication:

“Whether the termination of services of Ms. Seema Thakur D/o Shri Surjan Singh

Thakur, workman by the Head Master, Bishop Cotton School, Shimla 171002 w.e.f.

3.12.2004 without complying the provisions of the Industrial Disputes Act, 1947 is proper

and justified? If not, what relief of service benefits and amount of compensation the

above aggrieved workman is entitled to?”

2. Briefly, the case of the petitioner is that against the illegal termination, she raised

demand notice upon which conciliation was made which failed. The petitioner was engaged as a

relieving matron by the respondent school w.e.f. May, 2000 and worked in various capacities with

utmost zeal and sincerity and her good work had been appreciated by her superiors and students of

the school. It is further stated that at the time of her appointment, the petitioner was made to

understand that her appointment was initially on probation for one year and thereafter, if her work

was satisfactory, she would be absorbed in the institution on regular basis and on completion of one

year of probation period, her services were further extended up to 31.5.2001 on a fixed salary of

Rs. 3600/- along-with free meals and service benefits as per the rules and regulations of the school.

Vide letter dated 31.5.2001, the services of the petitioner had further been extended and despite

putting about two years of service, she had not been regularized or made permanent, hence, vide

letter dated 22.11.2002, she requested respondent to make her appointment permanent. Thereafter,

the respondent released the service benefits to the petitioner as that of a regular employee and

continued in service till 3.12.2004, when her services had been suddenly and unilaterally dispensed

with without assigning any reason. It is also stated that the petitioner is an honest and dedicated

worker and had been a part of the prestigious institution for more than four years and she was

discriminated against the employee, who was junior to her. The petitioner approached the

respondent vide letter dated 10.11.2004 stating therein that she had been discriminated against.

Thereafter, her services had been terminated and as such grave injustice has been caused to the

petitioner as no reason whatsoever had been attributed of her said termination. The petitioner had

completed 240 working days in each and every calendar year and her services were regular in

nature against a permanent post. The respondent had also retained juniors to the petitioner and after

her termination fresh appointments have been made, hence, the act of the respondent is in violation

of the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act) and also

principles of natural justice. The services of the petitioner had been terminated without compliance

of section 25-F of the Act. Against this back-drop a prayer for reinstatement along-with all

consequential service benefits of pay, arrears, seniority etc., with interest @ 9% per annum has

been made.

3. The respondent contested the claim by filing a reply wherein preliminary objections

regarding contractual service, concealment of material facts and that the claim is barred by

principle of res-judicata had been raised. On merits, the respondent admitted that the petitioner was

engaged as relieving matron on the basis of personal service contract dated 6.4.2000 w.e.f. 1.5.2000

to 31.7.2000 vide letter dated 31.7.2000 which was extended from 1.8.2000 to 31.12.2000. It is

denied that the petitioner had been working with zeal and her services were indispensable. It is

further denied that her good work had been appreciated by all or anyone. It is asserted that the

petitioner had failed to perform her duties properly and on the report of Senior Master her

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explanation was also called vide letter 15.9.2003. It is denied that vide letter dated 31.5.2001, a

fresh contract of services was entered with the petitioner and the contract period of services was

from 1.6.2001 to 31.12.2002 which was extended till 1.3.2004. The services of the petitioner had

been terminated on 3.12.2004 as per terms and condition of the contract of employment and no

reasons were required to be given for terminating her services. The respondent prayed for the

dismissal of the claim petition.

4. No rejoinder was filed. On the pleadings of the parties, the following issues were

struck on 11.12.2013.

1. Whether the termination of services of the petitioner w.e.f. 3.12.2004 without

complying with the provisions of the Industrial Disputes Act, 1947 is 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 this petition is not maintainable in view of preliminary objection no.1?

OPR…….

4. Whether the claim of the petitioner is barred by the principle of res-judicata?

OPR……..

5. Relief.

5. The parties have led their evidence in support of the aforesaid issues.

6. In support of her case, the petitioner appeared into the witness box as PW-1 and

tendered her affidavit Ex. PW-1/A in examination-in-chief wherein she reiterated almost all the

averments as stated in the claim petition. In cross-examination, she admitted that she had been

engaged on contract basis and the contract was read over to her. She admitted that letter Ex. R-1

had been received by her on the basis of which extension had been given to her. She denied that

since her work was not satisfactory, hence, vide letter dated 3.12.2004, she had been terminated

from service. She admitted that termination order dated 3.12.2004, had been challenged in Civil

Court by her and Ex. R-2, is the copy of order. She denied that her juniors had not been regularized

but stated that Krishna Rawat, Ishan and others were regularized. She denied that she was

terminated as per rules and on the basis of terms and conditions stipulated in contract. She denied

that she had not completed 240 days in a calendar year.

7. Conversely, the respondent has examined one Shri Rajesh Pandey, Administrative

Officer as RW-1, who has stated that the petitioner was engaged as relieving matron on contractual

basis in the year, 2000 and her contract used to be renewed on year to year basis. Her work was not

up to the mark and there had been complaints from parents and senior master also wrote letter to

Head Master regarding her service. The services of the petitioner had been terminated on the basis

of terms and conditions prescribed in Ex. R-1. In cross-examination, he stated that neither any

notice was given to the petitioner regarding her unsatisfactory performance nor enquiry was

initiated against her. He admitted that the suit was withdrawn by the petitioner on the grounds of

jurisdiction as per Ex. R-2. He has no knowledge that two matrons who were junior to the

petitioner had been regularized.

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8. Besides having heard the learned counsel for the parties, I, have also gone through the

record of the case carefully.

9. For the reasons to be recorded hereinafter my findings on the aforesaid issues are as

under:

Issue no.1

No.

Issue no.2

Becomes redundant.

Issue no.3

Decided accordingly.

Issue no.4

No.

Relief.

Reference answered in against the petitioner and in favour of the

respondent per operative part of award.

Reasons for finding

Issue no.1 & 3.

10. Being interlinked and correlated both these issue are taken up and discussed together

for decision.

11. The learned counsel for the petitioner contended that the services of the petitioner had

orally been terminated by respondent no.1 without any reason despite the fact that she had

completed more than 240 working days in a calendar year preceding her termination. He further

contended that junior person to petitioner had been regularized by the respondent whereas the

services of the petitioner had been terminated without holding any enquiry and even no opportunity

of being heard was afforded to her before terminating her services.

12. On the other hand, learned counsel for respondent contended that since the petitioner

was appointed on contract basis and her services were not found satisfactory, hence, she was

terminated from service as per rules and as per the terms and conditions of her appointment letter.

13. 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 the petitioner was appointed as relieving matron on contract basis and

worked as such initially w.e.f. 1.5.2000 to 31.7.2000 and thereafter her contract was used to be

renewed on year to year basis. The perusal of letter dated 6.4.2000 Ex. RW-1/B, shows that the

petitioner was offered a temporary position as relieving matron w.e.f. 1.5.2000 to 31.7.2000 on a

fixed salary of Rs. 3600/- per month and she had accepted the employment with the respondent on

the aforesaid terms and conditions. The perusal of letter dated 31.5.2001, Ex. R-1 also shows that

the petitioner was given extension on contract basis from 1.6.2001 to 31.12.2002 on fixed basic

salary or Rs. 3400/- plus dearness allowances etc. In her cross-examination, before this Court as

PW-1, the petitioner admitted that she was appointed on contract basis and the contract was read-

over to her. She further admitted that on the basis of letter Ex. R-1, she was given extension.

Therefore, from the perusal of entire evidence, it stands duly proved on record that the petitioner

was engaged by the respondent on contract basis w.e.f. 1.5.2000 to 31.7.2000 and thereafter her

contract was renewed from time to time and she was given extension in service after having

accepted the terms and conditions stipulated in the appointment letter. In 2006 LLR 1233 SC in

case titled as Vidya Vardhaka Sangha & Anr. V. Y.D Deshpande &Ors, it has been held that:-

“The appointment made on probation/ad-hoc basis for a specific period of time comes to

an end by efflux of time and the person on such post can have no right to continue on the

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post. When after having accepted the terms and conditions stipulated in the appointment

letter and allowed, the period for which they were appointed has been elapsed by efflux of

time, they cannot be permitted to challenge the validity of their termination.

In 2006 (2) SCC 794 in case titled as Haryana State Agricultural Marketing Board V.

Subhash Chand & Anr. the Hon’ble Supreme Court has held as under:

“11. The question as to whether Chapter V-A of the Act will apply or not would be

dependent on the issue as to whether an order of retrenchment comes within the

purview of Section 2 (oo) (bb) of the Act or not. If the termination of service in

view of the exception contained in clauses (bb) of Section 2(oo) of the Act is not a

'retrenchment’, the question of applicability of Chapter V-A thereof would not

arise.

12. Central Bank of India Vs. S. Stayam whereupon reliance was placed by Mr.

Singh, is itself an authority for the proposition that the definition

of’retrenchment’ as contained in the said provision is wide. Once it is held that

having regard to the nature of termination of services it would not come within

the purview of the said definition, the question of applicability of Section 25-G of

the Act does not arise.”

14. In the instant case, admittedly, the petitioner was engaged on contract basis. Thus, on

the basis of the above cited rulings and also having regard to the entire evidence on record, it can

safely be concluded that the petitioner had been engaged on contract basis, who was not retrenched

within the meaning of section 2(oo) of the Industrial Disputes Act, 1947 and that her case falls

within the exception as prescribed under section 2(oo)(bb) of the Act. Consequently, both these

issues are answered accordingly.

Issue no.2.

15. Since, the petitioner has failed to prove issues no.1 & 3, above, this issue becomes

redundant. Issue no.4.

16. In support of this issue, the respondent has contended that since the petitioner has

exercised her civil right by filing a civil suit for declaration and permanent prohibitory injunction

on the same cause of action, hence the present claim is barred by the principle of res-judicata.

However, from the perusal of the order dated 10.1.2005, Ex. R-2 passed by the Ld. Civil Judge, Sr.

Division Court No.1, Shimla, it is clear that the application filed by the applicant under order 39

rule 1 & 2 CPC was dismissed for want of jurisdiction and thereafter, vide order dated 5.3.2005, the

suit was dismissed as withdrawn and no findings have been given by the Ld. Civil Judge, Senior

Division on the merits of the case. Therefore, it cannot be said that the claim of the petitioner is

bared by the principle of resjudicata, as such, the issue is decided against the respondent and in

favour of the petitioner.

Relief

As a sequel to my above discussion and findings on issues no.1 to 4, the claim of the

petitioner fails and is hereby dismissed and as such the reference is ordered to be answered in

favour of the respondent and against the petitioner. Let a copy of this award be sent to the

8625

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appropriate government for publication in official gazette. File, after completion, be consigned to

records.

Announced in the open court today on this 2nd day of Jan., 2016.

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

___________

Ref.10 of 2014

Raminder Singh V/s M/s Link Utsav Ventures (P) Ltd & Others

2.1.2016:

Present:- None for the petitioner.

Shri S.K.Banyal, Advocate vice Csl for the respondent.

Today, the case was filed for the service of petitioner. The report received on notice is

revealing that the service of petitioner could not be effected for want of correct address. I Have

perused the record. The notice to be petitioner was sent on the address given by the Labour

Commissioner on the reference it self. In the absence pf Correct Address of petitioner. It is not

possible to effect his service. So, to further adjoum the case would be futile exercise. At the same

time it is relevant to mention that the Labour Commissioner has informed the petitioner about the

present reference by sending a copy of this reference to him. So, petitioner was having knowledge

that the reference was sent to this Court by the Labour Commissioner. Thus, he could have himself

appeared before this court in order to file his claim.

In the light of aforesaid facts, it appear that at present petitioner is not interested to press his

claim. The following reference qua the termination of services of petitioner was received from

appropriate government for adjudication.

“ Whether termination of the services of Shri Raminder Singh R/o VPO Salogra,

Tehsil and District Solan., HP w.e.f. 25.9.2012 by the employer M/s Link Utsav

Ventures Private Ltd , Sabzi Mandi Solan. District Solan, HP (present office) , M/s

Link Utsav Ventures Private Ltd , “D34, Basement Jungpura, Extension, New Delhi-

110014(Regd Office) without complying with the provisions of the Industrial Dispute

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?’’

In the absence of any claim petition and evidence on behalf of petitioner. It cannot be held

that his services were wrongly and illegally terminated by the respondents . Hence, the reference

awarded against the petitioner and the award is pass accordingly . However, liberty is granted to the

petitioner to agitate has termination for services by filing an application before as Court in order to

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revive the reference. 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:

2.1.2016

Sd/

Presiding Judge Labour Court, Shimla.

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNALCUM-LABOUR COURT, SHIMLA, (H.P).

Ref. No. 51 of 2012.

Instituted on. 26.7.2012.

Decided on 2.1.2016.

Devi Ram S/o Shri Besar Dass R/o Village & P.O Rewag, Tehsil Sunni, District Shimla,

HP.

……………Petitioner.

Vs.

The Executive Engineer, HPSEB Electrical Division Sunni, Tehsil Sunni, District Shimla,

HP.

…………Respondent.

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

For petitioner : Shri Neel Kamal Sood, Advocate.

For respondent : Shri Ramakant Sharma, Advocate.

AWARD

The following reference has been sent by the appropriate government for adjudication:

“Whether termination of the services of Shri Devi Ram S/o Shri Besar Dass R/o

Village Rewag, P.O Rewag, Tehsil Sunni, District Shimla, HP by The Executive

Engineer, HPSEB Electrical Sunni, District Shimla w.e.f. 1.6.1998 without following

the provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, to what

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

workman is entitled to from the above employer?”

2. In nutshell the case of the petitioner is that in the month of June, 1993, initially he was

engaged as daily wages beldar by the respondent and worked as such continuously to the utmost

satisfaction of his superiors till 31.5.1998 on which date his services had been orally terminated

without assigning any reason. It is further stated that the petitioner was assured by the respondent

that on the availability of work and funds, he would be re-engaged. The respondent engaged fresh

persons but the petitioner was not called to re-join his duties. Feeling aggrieved by the wrongful

action of respondent, the petitioner filed an OA before the Administrative Tribunal which was

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disposed of for want of jurisdiction. Thereafter, the petitioner raised an industrial dispute which

was rejected by the Labour Commissioner vide order dated 15.11.2006 and then the petitioner filed

a Civil Writ Petition before the Hon’ble High Court which was allowed and the Labour

Commissioner referred the matter to this Court for adjudication. It is also stated that juniors to the

petitioner, as named in para 7 of the petition, are still working with the respondent and even fresh

persons have also been engaged by the respondent in violation of the provisions of last come first

go. Not only this, the respondent also violated the provisions of Industrial Disputes Standing

Orders. The services of the petitioner had been terminated without serving any notice under section

25-F of the Industrial Disputes Act, 1947 (hereinafter referred as to Act) despite the fact that he had

completed 240 days in each calendar year. Against this back-drop a prayer for his reinstatement

with all the consequential service benefits including back-wages has been made.

3. By filing reply, the respondent had contested the claim of the petitioner wherein

preliminary objections have been taken qua maintainability, no legal enforceable cause of action,

delay and laches, concealment of material facts and that the petition is bad due to acts, deeds,

conduct and acquiescence of the petitioner. On merits, it has been asserted that the petitioner had

been engaged as a casual worker on muster roll for specific work, who worked for brief spells from

4.5.1993 to 21.3.1998. The petitioner worked only for 115 days from 4.5.1993 to 25.12.1993, 71

days from 26.12.1993 to 25.4.1994 and 63 days from 1.1.1998 to 31.3.1998 and as such he worked

for 249 days in total. The petitioner never completed 240 days in any calendar year and even he

was well aware that he was engaged for specific work and on the completion of said work, his

services automatically came to an end. It is denied that junior person was engaged except those

directed by the Court. It is further asserted that only one beldar Shri Trilok Singh was engaged on

daily wages basis as sweeper-cum-chowkidar in Electrical Sub Division, Jalog on 5.8.1999. The

respondent 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 5.6.2013.

1. Whether the termination of the services of Shri Devi Ram w.e.f. 1.6.1998 by the

respondent without following the provisions of the Act is illegal and unjustified?

OPP……

2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled

to?

OPP……..

3. Whether this claim petition is not maintainable?

OPR…..

4. Relief.

5. Besides having heard the learned counsel for the parties, 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 Entitled to reinstatement w.e.f. 2.8.2004 but without back-wages.

Issue no. 3 No.

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Relief.

Reference partly answered in favour of the petitioner and against the respondent

per operative part of award.

Reasons for findings

Issue no.1 .

7. The learned counsel for the petitioner has argued with vehemence that the services of

the petitioner had been terminated illegally without following the mandatory provisions of the Act.

He further contended that since, the petitioner had completed 240 days in each calendar year, his

termination without notice and compensation is against the provisions of the Act and even junior to

him are still working with the respondent.

8. On the other hand, Ld. counsel for respondent contended that the services of the

petitioner had been engaged for specific work and on the completion of said work, his services

stood automatically came to an end. He further contended that the petitioner had not completed 240

days in any calendar year and no junior to him had been retained/engaged by the respondent.

9. To prove his case, the petitioner has examined two PWs. PW-1 Shri Jagat Ram,

Assistant Engineer, HPSEB Jalog has stated that the petitioner was engaged in the year, 1993 as

beldar as per requirement of work. Along-with petitioner some other persons had been engaged.

The petitioner was terminated from service on 21.3.1998 and some of those workers, who had been

engaged along-with the petitioner were retained by the respondent and even thereafter some

persons have been engaged. The department had engaged one Shri Trilok Singh on 5.8.1999, who

was not engaged on the basis of Court orders. The department had not issued any notice to the

petitioner to resume his duties. At the time of termination of the petitioner, no notice and

compensation had been given to the petitioner. In cross-examination, he stated that the petitioner

was engaged for specific work and he had not given anything in writing to the department for his

re-engagement. The department had not retained the junior to the petitioner.

10. The petitioner stepped into the witness box as PW-2 to depose that he was engaged as

beldar in the month of June, 1993 on daily wages basis at Sunni and continued as such till

31.5.1998. No notice had been given to him. He had completed 240 days and his juniors namely

Madan Lal, Gian Chand, Om Prakash, Chet Ram, Bhupesh Kumar, Sita Ram and others had been

retained by the department. In cross-examination, he denied that he was engaged for specific work.

He admitted that he had worked for 115 days in 1993, 60 days in 1994 and 63 days in 1996. He

denied that he had abandoned his job.

11. On the other hand, the respondent has examined RW-1 Shri Raman Chaudhary, Senior

Executive Engineer, who has stated that the petitioner Shri Devi Ram had worked with the

respondent as per mandays chart Ex. RW-1/A and the Board has neither retained the services of

any junior nor any fresh appointment has been made after the year, 1998. In cross-examination, he

stated that no notice was issued to Devi Ram prior to the termination of his services and no

compensation was paid to him. He has no knowledge that Shri Madan Lal, Gian Chand, Om

Prakash, Chet Ram Bhupesh, Sita Ram etc. were junior to the petitioner and they are still working

with the Board. He denied that the services of Devi Ram had been terminated illegally.

12. 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 daily wages beldar by the respondent

w.e.f. June, 1993 and worked as such till 31.5.1998. The perusal of mandays chart Ex. RW-1/A

goes to show that the petitioner had worked only for 115 days in the year, 1993, 60 days in the

year, 1994 and 63 days in the year, 1998. No, doubt the case of the petitioner is that he had worked

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with the respondent till 31.5.1998 and completed 240 working days in every calendar year and also

in twelve calendar months preceding his termination 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 31.5.1998. Moreover, there is nothing on record

which could 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.”

13. 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 co-

worker 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.

14. From the perusal of mandays chart, Ex. RW-1/A, 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.

15. The learned counsel for the petitioner next contended that the persons junior to the

petitioner are still working whereas the services of the petitioner had been terminated as such there

is a breach of sections25-G and 25-H of the Act. 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

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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 services 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 reason5_ In the present case the petitioner has proved on record by

examining PW-1 Shri Jagat Ram, Assistant Engineer, HPSEB Jalog that after the termination of the

petitioner, some persons who were engaged along-with the petitioner have been retained and some

fresh workers have also been engaged. He further stated that those persons who have completed

240 days have been engaged on the basis of orders of the Court whereas the other persons who

have not completed 240 days have been engaged by the department. He also stated that one Shri

Trilok Singh was engaged on daily wages on 5.8.1999. The petitioner also stated in his deposition

before this Court that his juniors namely Madan Lal, Gian Chand, Om Prakash, Chet Ram,

Bhupesh Kumar, Sita Ram and others have been retained. In cross-examination, RW-1 Shri Raman

Chaudhary expressed his ignorance that S/Shri Madan Lal, Gian Chand, Om Prakash, Chet Ram,

Bhupesh and Sita Ram who were junior to the petitioner are still working with the Board though he

admitted that some of those persons have been kept in service on the orders of the Court. He also

admitted that no notice was issued to Devi Ram prior to the termination of his services.

16. 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 his junior Shri Trilok Singh and others had been engaged by the respondent whereas no

notice was given to the petitioner at any point of time to show that he was called by the respondent

for employment before the engagement of his junior Shri Trilok Singh and others 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” thereby violating 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.

17. 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. It may be pertinent to

mention here that after the termination of the services of the petitioner, he had approached the HP

Administrative Tribunal, Shimla by filing Original Application which was dismissed for want of

jurisdiction and on 2.8.2004, the petitioner raised demand notice before the Labour-cum-

Conciliation Officer, Shimla but the Labour Commissioner had refused to refer the matter to this

Court vide order dated 15.11.2006. Thereafter the petitioner filed writ petition and the Hon’ble

High Court disposed of the aforesaid writ petition on 17.4.2012 with the direction to the Labour

Commissioner to refer the matter to this Court. Therefore, in view of the facts and circumstances of

the present case, it would be in the interest of justice if the petitioner is ordered to be reinstated in

service from the date when he raised the demand notice i.e 2.8.2004.

18. 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

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

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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.

19. 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 backwages

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…………..”

20. 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.

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.

21. 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 partly allowed and the petitioner is ordered to be reinstated in

service forthwith with seniority and continuity from the date when he raised the demand notice i.e

2.8.2004. 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 2nd Day of Jan., 2016.

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

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Ref 1 of 2015

Smt Meghna Sharma V/s M/s wildcraft India (P) Ltd Solan

4.2.2016:

Present:- Shri J.C.Bhardwaj AR for the petitioner.

Shri Rahul Mahajan Advocate for the respondent.

At this stage Shri J.C. Bhardwaj, AR for the petitioner has stated that the workers union

have arrived at a settlement with the management under section 2(p) read- with section 12 (3) of the

industrial Dispute Act,1947 and Himachal Pradesh Industrial Dispute Rules,1974 vide memorandum

of settlement Ex.C-1 and in view of settlement Ex.. C1, all the disputes between the parties as

referred to vide reference no. 1/2015 stands settled. To this effect his statement recorded separately.

In view of the statement of Shri J.C. Bhardwaj , I am satisfied that a lawful compromise as

per settlement Ex. C-1 has been effected between the parties .Therefore, the reference sent by the

appropriate government for adjudication is answered in terms of settlement Ex.C-1 which shall

form part of this award/order. Let acopy of this award/order be sent to the appropriate government

for publication in the official gazette. File, after completion, be consigned to records.

Announced:

04.01.2016

Sd/-

Presiding Judge, Labour Court, Shimla.

____________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNALCUM-LABOUR COURT, SHIMLA, (H.P)

Ref. No. 17 of 2012.

Instituted on. 5.12.2012.

Decided on 4.1.2016.

Roshan Lal S/o Shri Gopi Chand R/o Village Palag, P.O Kadarghat, Tehsil Sunni, District

Shimla, HP.

……………Petitioner.

Vs.

The Block Development Officer, Basantpur, Tehsil Sunni, District Shimla, HP.

…………Respondent.

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

For petitioner : Shri Naresh Sharma, Advocate.

For respondent : Shri H.N Kashyap, Advocate.

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AWARD

The following reference has been sent by the appropriate government for adjudication:

“Whether termination of services of Shri Roshan Lal S/o Shri Gopi Chand R/o Village

Palag, P.O Kandaghat, Tehsil Sunni, District Shimla HP by the Block Development

Officer, Development Block Basantpur, Tehsil Sunni, District Shimla, HP w.e.f.

September, 2010 without complying with the provisions of the Industrial Disputes Act,

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

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

2. Briefly, the case of the petitioner is that initially he was appointed as beldar-cum-peon

on daily wages basis by the respondent on 1.12.2009 and worked as such continuously to the

utmost satisfaction of his superiors but his services had been terminated on 13.10.2010 without

assigning any reason and he was assured that on availability of work and funds, he would be re-

engaged but of no avail. Thereafter, the petitioner filed demand notice and the conciliation

meetings failed due to unreasoned attitude of the respondent and the matter was referred to this

Court under reference. It is further averred that juniors to the petitioner were retained by the

respondent, who are still working. The petitioner had completed 240 working days in each calendar

year and as such the termination of the services of the petitioner is in violation of the provisions of

sections 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 (hereinafter referred to as Act).

Against this back-drop a prayer has been made for his reinstatement along-with all the

consequential service benefits.

3. By filing reply, the respondent had contested the claim of the petitioner wherein

preliminary objections had been taken qua maintainability and concealment of material facts. On

merits, it has been asserted that earlier the petitioner was engaged for the purpose to remove bushes

etc. from the out-side office of the respondent as per availability of work for which he was

compensated from the contingency funds of the Block and now there is no work for the petitioner.

The office of the respdonent does not falls under the definition of industries and the dispute raised

by the petitioner is not covered under the Act. 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

20.6.2013.

1. Whether the services of the petitioner w.e.f. September, 2010 as stated in the reference

and w.e.f. 13.10.2010 as alleged in the claim petition, have been terminated in an

illegal and unjustified manner without complying with the provisions of Industrial

Disputes Act, 1947 as alleged?

OPP……

2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled

to?

OPP……..

3. Whether this petition is not legally maintainable as alleged?

OPR……..

4. Relief.

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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

Issues no.1.

8. 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.

9. On the other hand, learned ADA appearing on behalf of the respondent contended that

since the petitioner was engaged for specific work for the purpose to remove bushes from the out-

side of the office of the respondent for which he had been paid wages from the contingency funds,

hence, he is not entitled to any relief as prayed by him.

10. The petitioner stepped into the witness box as PW-1 and tendered his affidavit Ex.

PW-1/A in examination-in-chief wherein he reiterated all the averment as stated in the claim

petition. In cross-examination, he admitted that he was engaged to remove the bushes. He denied

that he had received the total wages of work done by him. He admitted that for his engagement, no

written orders had been issued in his favour.

11. On the contrary, the respondent examined one Shri Sanjay Bhardwaj, as RW-1, who

stated that he has been authorized to give statement vide authority letter Ex. RW-1/A and tendered

his affidavit Ex. RW-1/B in examination-in-chief wherein he reiterated almost all the averments as

made in the reply. He also tendered, in evidence, copy of mandays chart of the petitioner Ex. RW-

1/C. In cross-examination, he admitted that the petitioner was engaged on daily wages basis on

muster roll. Further volunteered that the petitioner was engaged on contingency basis and the

wages to him were also paid from contingency funds. He admitted that on 1.12.2009, the petitioner

was engaged as beldar-cum- peon. Neither any notice nor any compensation was paid to the

petitioner at the time of his retrenchment. He admitted that the services of the petitioner had been

terminated orally and no notice to resume his duties had been issued to him. He admitted that as per

Ex. RW- 1/C the petitioner had completed more than 240 days in preceding twelve months.

12. 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 beldar-cum-peon

w.e.f. 1.12.2009 till 9/2010 which is clear from the mandays chart of the petitioner Ex. RW-1/C. In

para no.4 of his affidavit Ex. PW-1/A, the petitioner had admitted that he had worked with the

respondent w.e.f. 12/2009 till 9/2010. The perusal of mandays chart Ex. RW-1/C further goes to

show that the petitioner had worked for 268 days meaning thereby the petitioner had completed

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more than 240 days in twelve calendar months preceding his termination. Even, RW-1 Shri Sanjay

Bhardwaj has admitted in his cross examination that the petitioner had worked for more than 240

working days in preceding twelve calendar months. Therefore, before terminating the services of

the petitioner, it was incumbent upon the respondent to have complied with the provisions of

section 25-F of the Act which lay down certain conditions precedent to the retrenchment of a

workman (workmen) and requires the employer to comply with those conditions as per clauses (a)

to (c) which are mandatory in nature. However, in the present case, the perusal of the record shows

that the respondent has failed to comply with the provisions of section 25-F of the Act. It has been

held by our own Hon’ble High Court in Latest HLJ 2007 (HP) 776 titled as State of Himachal

Pradesh Vs. Sohan Lal that the settled law in counting 240 days is that the same has to be

calculated preceding the date of retrenchment during twelve calendar months and not a year. The

relevant extract of the aforesaid judgment is reproduced as under:

“2. I have perused the record and heard the parties. The Labour Court has come to the

right conclusion that the workman could not be retrenched without complying with

Section 25-F of the Industrial Disputes Act, 1947. Though the petitioner-State has

place on record the copy of man-days to substantiate its plea that the workman has not

completed 240 days preceding the date of his retrenchment. The settled law for

counting 240 days is that the same has to be calculated preceding the date of

retrenchment during 12 calendar months and not a year.”

In 2010 (5) SCC 497 titled as Anoop Sharma Vs. Executive Engineer, Public

Health division no.1, Panipat (Haryana), the Hon’ble Supreme Court has held that

the termination of the services of an employee by way of retrenchment without

complying with the provisions of section 25-F of the Act is a nullity. The relevant

extract of aforesaid judgment is reproduced as under:

“16. An analysis of the above reproduced provisions shows that no workman employed in

any industry who has been in continuous service for not less than one year under an

employer can be retrenched by that employer until the conditions enumerated in

Clauses (a) and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the

employer is required to give to the workman one month’s notice in writing indicating

the reasons for retrenchment or pay him wages in lieu of the notice. Clause (b) casts a

duty upon the employer to pay to the workman at the time of retrenchment,

compensation equivalent to fifteen days’ average pay for every completed year of

continuous service or any part thereof in excess of six months.

17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory

and

non-compliance

thereof

renders

the

retrenchment

employee

nullity……………..”

13. In the present case also admittedly the respondent had not complied with the

conditions precedent to the retrenchment as per section 25-F of the Act which are mandatory in

law. Hence, In view of the law laid down by the Hon’ble Supreme Court and our own Hon’ble

High Court (supra) and my foregoing observations, I have no hesitation in holding that the

termination/disengagement of the services of the petitioner w.e.f. September, 2010, by the

respondent without complying with the provisions of the Act, is illegal and unjustified.

14. The learned counsel of the petitioner also contended that at the time of the termination

of the petitioner, the respondent had retained his juniors who are still working and besides this even

fresh persons have been engaged by the respondent as such the respondent had violated the

principles of “last come first go”. However, except for the bald statement of the petitioner by way

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of affidavit Ex. PW-1/A, no other evidence has been led by him to prove that the persons junior to

him have been retained by the respondent. Even, in his cross-examination, the petitioner has

admitted that under contingency funds, no person had been employed by the department after his

termination. He also admitted that the persons who have ben engaged by the department were

engaged under the scheme of MANREGA. Thus, keeping in view the entire evidence on record, the

petitioner has failed to prove that his juniors have been retained and are still working with the

respondent. Hence, the case of the petitioner does not fall under section 25-G and 25-H of the Act.

Issue no.2.

15. 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 section 25-F of the Act is illegal

and unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and

continuity.

16. 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.

17. 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 backwages

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…………..”

18. 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.

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.

19. In support of this issue, no evidence has been led by the respondent being the legal

issue. 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 legally maintainable. Accordingly, this issue is decided in favour of the petitioner and against the

respondent.

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Relief

As a sequel to my above discussion and findings on issues no.1 to 3, 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 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 4th Day of Jan., 2016.

(Sushil Kukreja),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

__________

Ref. 43 of 2012

Smt Rekha Devi V/s M/s VMT Spining company Ltd ,Distt Solan

12.1.2016.

Present:- Petitioner in person with Shri J.C.Bhardwaj, AR

Shri Rajeev Sharma, Advocate for respondent.

At this stage Smt Rekha Devi petitioner has stated that she is ready and willing to

settle the matter arising out to reference case no. 43 of 2012 with the respondent by receiving Rs.

20,000/- in lump sump as full & final payment towards all the legal dues of her services with the

respondent. To this effect her statement recorded separately.

In view of the statement of petitioner, I am satisfied that a lawful compromise has

been effected between the parties and the petitioner has received Rs.20,000/- in lump sump as

full & final payment towards all the legal dues of her services with the respondent. Therefore,

the reference sent by the appropriate government for adjudication is answered accordingly . The

statement of petitioner shall form part of this award/Order. Let a copy of this award/order be

sent to the appropriate government for publication in the official gazette. File , after completion,

be consigned to records.

Announced:

12.01.2016

Sd/-

Presiding Judge,

Labour Court, Shimla.

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Ref.70 of 2015

Sh Surender Pal V/s M/s Alliance Formulations, Baddi

14.1.2015:

Present:

None for the petitioner.

Sh Rupesh Sharma Adv, for respondent.

It is 10:45 AM. None appeared on behalf of the petitioner. Be awaited.

(Sushil Kukreja),

Presiding Judge

Labour Court, Shimla.

Case called again.

Present:

None for the petitioner.

Sh Rupesh Sharma Adv, for respondent.

It is 12:55 PM. but none appeared on behalf of the Petitioner. Be called after

lunch.

(Sushil Kukreja),

Presiding Judge

Labour Court, Shimla.

Case called after lunch.

Present:

None for the petitioner.

Sh Rupesh Sharma Adv, for respondent.

It is 3:45 PM. but none has appeared on behalf of the Petitioner. The notice sent for the

service of the petitioner has been received backl duly served as per AD. Case called repeatedly in

pre and post lunch sessions but none appeared on behalf of the petitioner, hence , this court is left

with no other alternative but to decide the reference on the basis of material whatsoever is available

on the file. The following reference has been received from the appropriate government for

adjudication.

“Whether termination of services of Shri Surender pal s/o Shri Dhanu Ram Village

Chatipura Kunjhai. P.O. Barotiwala, Tehsil Baddi District Solan, HP w.e.f 4.8.2014 by

Manageing Director/ Employer M/s Alliance Formulations plot no. 31-32 EPIP, Phase-

1 Jharmajri, Baddi, District Solan, HP without complying with the provisions of the

Industrial Dispute Act,1947 as alleged by the workman is legal and justified? If not, to

what relief of reinstatement, compensation and other service benefits the above

aggrieved workman is entitled to from the above employer/ management ?’

As per reference received from the appropriate government, the petitioner has alleged his

termination w.e.f 4.8.2014 without complying with the provisions of industrial Dispute Act, 1947,

to be illegal and unjustified but, the petitioner has failed to appear before this Court despite having

been served in accordance with law and to file any claim in support thereof and to lead evidence in

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order to show that his services have been illegally terminated by the respondent without complying

with the provisions of the Industrial Dispute Act, 1947. It appears that the petitioner is not

interested to pursue his case, therefore, he has failed top appear before this court despite service.

Hence, in the absence of any claim petition/ evidence on record, 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:

14.1.2016

Sd/-

(Sushil Kukreja),

Presiding Judge

Labour Court, Shimla.

____________

Ref. 80 of 2015

Sh Kuldeep Shashtri & others V/s M/s National Pharmaceuticals Pvt, Ltd.

15.01.2016:-

Present:- Sh Rajesh Kumar , President of workers union foo petitioner.

Sh Mohit Bhutoria, factory Manager for respondent.

At this stage it has been stated by Shri Rajesh Kumar, President of the workers union that

the workers union had entered into a settlement with the management of respondent company under

section 12 (3) read –with section 18 (3) of the industrial Dispute Act, 1947 before the Labour –

cum- conciliation officer, Solan on 5.1.2015 vide settlement Ex,C-2 against the present reference

no.80 of 2015 and as such the reference be decided accordingly. To this effect his statement

recorded separately.

Sh Mohit Bhutoria, Factory Manager , has also stated that the management has settled the

matter with the workers union vide settlement Ex.C-2. To this effect his statement also recorded

separately.

Therefore , in view of the statement of Shri Rajesh Kumar , President which has been

supported by Shri Mohit Bhutoria , Factory Manager for respondent company .I am satisfied that a

lawful compromise under section 12 (3) read with section 18(3)of the Act, before the Labour–cum-

Conciliation Officer, Solan vide settlement Ex.C-2 has been effected between the parties.

Hence, the reference sent by the appropriate government to this court for adjudication is

answered in terms of settlement Ex. C-2. Let a copy of this award/order be sent to the appropriate

government for publication in the official gazette. File , after completion, be consigned to records.

Announced:

15.1.2016

Sd/-

Presiding Judge Labour Court, Shimla.

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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNALCUM-LABOUR COURT, SHIMLA, (H.P)

Ref. No. 19 of 2012.

Instituted on. 1.6.2012.

Decided on 20.1.2016.

Manu Pratap Singh S/o Shri Prem Chand R/o Shanti Bhawan, Below Government School,

Bhagwato Nagar, Lower Khalini, District Shimla, HP.

……………Petitioner.

Vs.

The Commissioner, Municipal Corporation, The Mall Shimla-1.

…………Respondent.

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

For petitioner : Shri Tek Chand, Advocate.

For respondent : Shri Surender Chauhan, Advocate.

AWARD

The following reference has been sent by the appropriate government for adjudication:

“Whether action of employer i.e The Commissioner, Municipal Corporation, The Mall

Shimla-1 to dismiss the daily wage services of Shri Manu Pratap Singh S/o late Shri

Prem Chand R/o Shanti Bhawan, below Government School, Bhagwati Nagar, Lower

Khalini District Shimla, HP vide order dated 20.8.2010 without conducting domestic

enquiry and complying the provisions of the Industrial Disputes Act, 1947 is legal and

justified? If not, to what amount of back wages, seniority, past service benefits and

compensation the above workman is entitled to from the above employer?”

2. In nutshell, the case of the petitioner is that on 23.4.2007, he was appointed as daily

wages clerk on compassionate grounds as his father died in harness during the services of the

corporation and worked in different sections and he was entrusted the work of distributing the

dustbins and register the members for collecting of garbage from door to door scheme and his

services had been terminated vide letter dated 20.8.2010. The petitioner had completed 240 days in

each calendar year. It is further stated that the petitioner remained absent w.e.f. 10.5.2010 to

18.6.2010 for the reasons beyond his control and he could not deposit receipt book, cash on

10.5.2010 till 18.6.2010, hence, show cause notice dated 12.7.2010 had been served on him, which

was duly replied by him. The services of the petitioner had been terminated without conducting any

enquiry and affording an opportunity to defend himself. Against this back-drop a prayer for his re-

engagement, alongwith back-wages and other consequential service benefits has been made.

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 approached

this Court with clean hands and suppression of material facts. On merits, it has been admitted that

the petitioner has joined as daily waged clerk on 23.4.2007 and remained on muster roll in the

various section/branches of M.C Shimla. He was assigned the work of distribution of dustbins and

collection of membership fee/security under Door to Door Garbage Collection Scheme of SEHB

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Society (hereinafter referred to as Society) but the petitioner had not deposited the amount of

membership to the tune of Rs. 10,000/- which was collected by him through receipt no. 17251 to

17350 and as such he embezzled the aforesaid amount and remained absented from the duty from

8.5.2010 onwards for which FIR dated 31.5.2010 was lodged against the petitioner in Police Station

Sadar. Thereafter, a show cause notice dated 12.7.2007 had been issued to the petitioner and after

considering the reply of the petitioner, his services had been terminated vide order dated 20.8.2010.

The respondent 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 25.10.2014.

5. Whether the action of the respondent to dismiss the services of the petitioner vide order

dated 20.8.2010 without conducting domestic enquiry and complying with the

provisions of the Industrial Disputes Act, 1947 is illegal and unjustified as alleged?

OPP……

6. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled

to?

OPP……..

7. Whether this petition is not maintainable?

OPR……..

8. Relief.

5. Besides having heard the learned counsel for the parties, 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

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

Issues no.1 .

7. 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 especially when he had completed more than 240 days in each calendar

year. 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.

8. On the other hand, Ld. Counsel for the respondent contended that the petitioner had

absented from duty and embezzled an amount of Rs. 10,000/- for which a show cause notice was

issued to him and after considering his reply, he was rightly dismissed from service, hence, he is

not entitled to any relief.

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9. The petitioner stepped into the witness box as PW-1 to depose that he had been

working as clerk with the respondent corporation and he was allotted the work to distribute the

dustbins and to collect the fees. He further stated that the collected fees had to be deposited once in

the office of M.C Shimla in 3-4 days by him but inadvertently he forgotten his bag along-with cash

and voucher in the vehicle of Shri Viajy Thakur, who handed over the same to him on 18.6.2010

and due to this reason he had remained absent w.e.f. 10.5.2010 till 18.6.2010. Before terminating

his services no notice had been given to him. He had not misused the money of respondent which

was deposited by his as per receipts. He was illegally terminated by the respondent. In cross-

examination, he denied that he usually remained absent from his duties. He denied that the

membership fees amounting to Rs. 10,000/- had not been deposited by him. He further denied that

his services had been terminated on account of embezzlement of money and also for remaining

absent from duty.

10. PW-2 Shri Vijay Thakur has stated that in the month of August, 2010, he had given lift

to the petitioner in his vehicle from Lakkar Bazar to victory tunnel. He further stated that the

petitioner had forgotten his bag in his vehicle which was containing cash and receipts and since he

(PW-2) remained on tour thereafter, therefore, he returned the bag to the petitioner after one month.

In cross-examination, he denied that being friend of petitioner he was deposing on his behalf

falsely.

11. On the contrary, the respondent examined one Shri Dalip Narwal, Senior Assistant,

who has stated that the petitioner was engaged as daily wages clerk on 23.4.2007 and he worked in

different sections. The petitioner had not submitted the collected amount of Rs. 10,000/- with the

corporation, hence, an application Ex. RW-1/A was submitted before the SHO Sadar Shimla, who

issued a letter to Commissioner, M.C Shimla Ex. RW-1/B. A show cause notice Ex. RW-1/C had

also been issued to the petitioner and vide Ex. RW-1/E, the petitioner submitted a written apology

with the Commissioner. The petitioner proceeded on leave without any intimation to the

authorities. In cross-examination, he admitted that the petitioner worked for more than 240 days in

each calendar year. He further admitted that from the year, 2007 to 2010, the petitioner had worked

honestly. He admitted that no enquiry had been conducted against the petitioner before terminating

his services. He denied that after the termination of the petitioner some other workers had been

engaged by the respondent.

12. 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 clerk w.e.f.

23.4.2007 to 19.8.2010. It is also the admitted case of the parties that the petitioner had completed

more than 240 working days in each calendar year. The only stand which has been taken by the

respondent is to the effect that the petitioner was irregular in performing his duties and did not

deposit the amount of membership fees and security to the tune of Rs. 10,000/- which was collected

by him and thus he embezzled the aforesaid amount and remained absent from duties from

8.5.2010 onwards for which a show cause notice Ex. RW-1/C was issued to him. The further case

of the respondent is that after considering the reply of the petitioner, Ex. RW-1/E, his services were

terminated as per order dated 20.8.2010, Ex. RW-1/D. However, it is also the admitted case of the

respondent that neither any chargesheet was served upon the petitioner nor any enquiry was

conducted against him before terminating his services by the respondent. 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 stated to be 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:

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“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 services, on

the basis of alleged misconduct. The learned counsel for the respondent has contended that

that the petitioner had confessed his misconduct vide his reply Ex. RW-1/E to the show

cause notice. However, the perusal of the aforesaid reply, Ex. RW-1/E, shows that the

petitioner had nowhere admitted that he had embezzled the amount of Rs. 10,000/-, hence, it

cannot be said that the petitioner had confessed his misconduct as contended by the learned

counsel for the respondent. Therefore, the termination order dated 20.8.2010, 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. The respondent had failed

to follow the principles of natural justice before terminating the services of the petitioner.

13. Admittedly, the petitioner had completed more than 240 days in each calendar year,

preceding his termination. It has been admitted by RW-1 Shri Dalip Narwal in his cross-

examination that the petitioner had worked continuously and completed 240 working days in each

calendar year. He further admitted that no enquiry had been conducted against the petitioner before

terminating his services. Now, it stands proved on record that the services of the petitioner had been

terminated without giving any opportunity of being heard to him and that too without complying

the provisions of section 25-F of the Act as no notice had been issued to him before terminating his

services. At this juncture, it would be relevant to re-produce section 25-F of the Act, which reads as

under:

25-F. CONDITIONS PRECEDENT TO RETRENCHMENT OF WORKMEN.- No

workman employed in any industry who has been in continuous service for not less

than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month’s notice in writing indicating the reasons

for retrenchment and the period of notice has expired, or the workman has been

paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment compensation which

shall be equivalent of fifteen days’ average pay (for every completed year of

continuous service) or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate government (or such

authority as may be specified by the appropriate Government by notification in

the Official Gazette.)

14. The provisions of section 25-F of the Act lay down certain conditions precedent to the

retrenchment of a workman (workmen) and requires the employer to comply with those conditions

as per clauses (a) to (c) which are mandatory in nature. However, in the present case, the perusal of

the record shows that the respondent has not complied the conditions of section 25-F as enumerated

in clause (a) to (c), precedent to the retrenchment of petitioner. In (2015) 4 SCC 544, Mackinnon

Mackenzie and Company Ltd., Vs. Mackinnon employees Union, the Hon’bel Apex Court has

held as under:

“34. ………………….The Industrial Court after examining the facts and evidence on

record has rightly answered the question of breach of Section 25F clause (b) in the negative

since no evidence has been produced by the respondent-Union to prove the same and further

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no calculation is brought to our notice as to the amount received by way of retrenchment

compensation and also the actual amount sought to have been paid to the retrenched

workmen. Further, with regard to the provision of Section 25F clause (c), the appellant-

Company has not been able to produce cogent evidence that notice in the prescribed manner

has been served by it to the State Government prior to the retrenchment of the concerned

workmen. Therefore, we have to hold that the appellant-Company has not complied with

the conditions precedent to retrenchment as per Section 25F clauses (a) and (c) of the I.D.

Act which are mandatory in law.”

15. In the present case also no evidence has been produced by the respondent to prove that

the petitioner has been given one month’s notice in writing indicating the reasons for retrenchment

or he has been paid wages for the period of notice as provided under clause (a) of section 25-F.

Moreover, no compensation equivalent to the fifteen days’ average pay (for every completed year

of continuous service) or any part thereof in excess of six months has been paid to the petitioner as

per clause (b) of section 25-F. Further, with regard to the provisions of clause (c) of the section 25-

F, the respondent has also failed to produce any evidence which could go to show that the notice

was served in the prescribed manner on the appropriate government. Therefore, it has become clear

that the respondent has not complied with the conditions (a) to (c) of the section 25-F, which are

mandatory in nature.

16. Therefore, In view of my foregoing observations, I have no hesitation in holding that

the termination 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/D is set aside and quashed.

Accordingly, this issue is answered in favour of the petitioner and against the respondent.

Issue no.2.

17. 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 illegal and unjustified,

hence, the petitioner is held entitled to reinstatement in service with seniority and continuity.

18. Now, the question which arises for consideration, before this Court is as to whether the