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Sr. No. Ref. No.

Petitioner

Respondent

Date of Award/Order

153/13

Ram Dei

D.F.O. Kullu

07-01-2016

76/14

Man Dass

S.E. I&PH, Sunder Nagar

15-01-2016

106/15

Bindai

I&PH/HPPWD, Killar

15-01-2016

116/15

Devi Chand

I&PH/HPPWD, Killar

15-01-2016

117/15

Om Prakash

I&PH/HPPWD, Killar

15-01-2016

124/15

Devi Singh

I&PH/HPPWD, Killar

15-01-2016

104/15

Uday Chand

I&PH/HPPWD, Killar

15-01-2016

127/15

Lekh Ram

I&PH/HPPWD, Killar

15-01-2016

241/13

Naresh Kumar

D.F.O. Suket

19-01-2016

10.

37/13

Manoj Kumar

M/s Surya Resort

19-01-2016

11.

12/14

Kehar Singh

Pradhan, Anu Co-opt.Agri.

Society

19-01-2016

95/15

Devi Singh

HPPWD, Killar

20-01-2016

119/15

Kushu Ram

HPPWD, Killar

20-01-2016

159/15

Man Dass

HPPWD, Killar

20-01-2016

169/15

Dharam Singh

HPPWD, Killar

20-01-2016

170/15

Hira Lal

HPPWD, Killar

20-01-2016

175/15

Chet Ram

HPPWD, Killar

20-01-2016

202/15

Ram Lal

HPPWD, Killar

20-01-2016

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. : 153/2013

Date of Institution : 09.09.2013

Date of decision : 07.01.2016

Smt. Ram Dei w/o Shri Puran Chand, r/o Village Talogi, P.O. Bari, Tehsil and Distirct

Kullu, H.P.

…Petitioner

Versus

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The Divisional Forest Officer, Kullu Forest Division, District Kullu, H.P.

….Respondent

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

For the Petitioner : Sh. Vipul Bhardwaj, Adv.

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

“Whether time to time termination of the services of Smt. Ram Dei, W/O Shri Puran Chand,

R/O Village Talogi, P.O. Bari, Tehsil and District Kullu, H.P. during 2002 to 2009 and

finally w.e.f. 28-4-2012 by the Divisional Forest Officer, Kullu Forest Division, District

Kullu, H.P. without complying the provisions of the Industrial Disputes Act, 1947 is legal

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

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

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

in pursuance to which claimant/petitioner had filed statement of claim before this court.

Brief facts as set up in the claim petition reveal that the services of petitioner were

engaged by the Forest Department as a daily wage worker w.e.f. January, 1990 and on the date of

institution of claim petition petitioner had been working at Mohal Nursery of the forest

department/respondent where she worked to the entire satisfaction of the respondent from January,

1990 to till date of her termination. It is stated that petitioner had applied to respondent seeking

information regarding her work status and mandays under the Right to Information Act and after

filing of the said application, the respondent had started harassing the petitioner unnecessarily

however the petitioner continuously worked with the respondent sincerely, efficiently and honestly

as before. It is further stated that the information which was sought by the petitioner had not been

supplied to her by the respondent/department. It is stated that the petitioner had completed more

than 240 days of work in the 12 calendar months preceding the date of her retrenchment i..e.

28.4.2012. It is further stated that petitioner had requested to the respondent many times but of no

avail besides the information as sought by the petitioner was provided to her after much delay and

petitioner on receipt of information was shocked to see that the information sought was not

correctly supplied to her. It is further stated that the respondent had malafidely terminated the

services of petitioner in illegal manner and in total violation of law, procedure and principles of

natural justice. It is contended that the services of petitioner were retrenched without following any

procedure as well as assigning any reason, charge-sheet, enquiry and also without any issuing show

cause notice and compensation was not paid to her which is total contravention of the mandatory

provisions of the Industrial Disputes Act, 1947 (hereinafter called as ‘the Act’ for brevity). It

is categorically stated that petitioner is still unemployed and not gainfully employed anywhere from

the date of her alleged termination and she was entitled for full back wages. It is further stated that

petitioner was a workman and respondent is an industry under the Act. It is also stated that before

termination of the services of petitioner, respondent had not obtained permission for retrenchment

under Section 25-N of the Industrial Disputes Act. It is prayed that the termination of the services

of petitioner w.e.f. 28.4.2012 be set aside and respondent be directed to reinstate the petitioner with

full back wages, continuity in service, seniority and all other consequential service benefits and

litigation expenses.

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

objections qua non-maintainability the petition being hit by the vice of delay and laches and the

petitioner having not approached this court with clean hands and he has concealed true or material

facts from the Court. On merits, engagement of the services of the petitioner from January, 1990 is

admitted. However, the respondent/department had not issued any order to engage the petitioner

but she was engaged as casual labour on seasonal work as per availability of works and funds. It is

stated that the petitioner had left the work of daily wager of her own sweet will. It is further stated

that respondent had not been disengaged the services of petitioner and she had never completed

240 days of work in each calendar year. It is stated that the services of petitioner were engaged as

daily wager with the respondent department during the intervening period from January, 1990 to

April, 2009 as per availability of funds and work and thereafter she had left the work of her own

sweet will without assigning reasons to the respondent/department and never made any request for

reengagement as daily wager till date. It is denied that the petitioner had ever applied for seeking

information regarding her mandays chart from the respondent’s office but the required information

under RTI Act was sought by the petitioner had already been supplied by Assistant PIO, Kullu

office vide letter no.144/k dated 13.7.2009. It is further stated that the services of petitioner were

engaged during the intervening period from January, 1990 to April, 2009 and she never completed

240 days of work from the date of her initial engagement and thus question of termination of the

services of petitioner w.e.f. 28.4.2012 does not arise. Hence, no provisions of the Act had been

violated by the replying respondent. Accordingly, cause of action as pleaded in the claim petition

filed by petitioner is denied and the petition is sought to be dismissed.

The petitioner filed rejoinder to reply filed by respondent, reiterated his stand as

maintained in the claim petition.

To prove her case, petitioner had examined herself as PW1 tendered/proved her

affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B copy of letter dated 13.7.2009

regarding information under RTI Act and closed evidence. On the other hand, repudiating the

evidence led by petitioner, respondent had examined Shri Neeraj Kumar the then Divisional Forest

Officer, Kullu as RW1, tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B copy of mandays

chart/voucher wise detail of petitioner, Ex. RW1/C copy of letter dated 13.7.2009 which

corresponds to Ex. PW1/B, Ex. RW1/D copy of letter dated 27.4.2012, Ex. RW1/E copy of letter

dated 24.4.2012 regarding information under RTI Act and closed the evidence.

I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

As per zimni order dated 12.3.2014, ld. counsel for petitioner states at bar that he

does not press the issue regarding providing fictional breaks in service to the petitioner by the

respondent/department from time to time i.e. from 2002 to the year 2009 since no such

industrial dispute was raised in the demand notice served upon the respondent/department

by the petitioner/workman as such no issue on time to time termination was framed however

from the contentions raised, following issues were framed by my ld. Predecessor on 12.3.2014 for

determination:

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

28-04-2012 is/was illegal and unjustified as alleged?

OPP

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

OPR

Whether the petitioner has concealed the true and material facts from the Court as

alleged? If so, its effect?

OPR

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Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?

OPR

Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1

: No

Issue No.2

: No

Issue No.3

: No

Issue No.4

: No

Relief

: Petition is dismissed per operative part of the Award.

REASONS FOR FINDINGS

ISSUE NO. 1

10. At the outset, it is apt to mention here that claimant/petitioner has made inconsistent

pleadings in different paragraphs of the claim petition as in para no. 1, petitioner claims to be

working at Mohal Nursery of H.P. Forest Department and in subsequent para of the same claim

petition she has mentioned that her services have been terminated. However, from the mandays

chart supplied with application for Right to Information Act Ex. PW1/D reveal that petitioner had

been engaged in the year 1990 and she continued to work till the year 2009. It is evident from the

mandays chart that petitioner lastly worked in the month of April, 2009 for about 20 days and 25

and 12 days respectively in the months of January and February, 2009. The case of the petitioner is

that she had completed 240 days in each calendar year and even prior to her termination, she had

completed 240 days who was not issued notice by the respondent and at the same time salary in lieu

of notice had also not been given and for said reason, termination was stated to be illegal under

Section 25-F of the Industrial Disputes Act.

11. A bare glance on the mandays chart would further reveal that petitioner had worked

for 57 days in the year 2009 whereas she had worked for 165 days from April, 2008 to December,

2008 and thus in preceding 12 months to her termination she had worked for 222 days meaning

thereby that the petitioner had not completed 240 days of working as is required so as to claim

petition under Section 25-F of the Industrial Disputes Act. Stepping into witness box as PW1

petitioner has sworn in affidavit Ex. PW1/A under Order 18 Rule 4 CPC in which she has reiterated

that respondent had illegally and malafidely terminated her service on 28.4.2012 whereupon

petitioner had given demand notice to respondent on 12.6.2012. In cross-examination she has

subsequently admitted that she had not worked after April, 2009 and later improved stating of her

own that she had worked upto April, 2012 but testimony does not show the period when she

worked last with the respondent. As noted above, petitioner is shown to have worked with the

respondent till April, 2009 and statement of petitioner showing that she had worked till April, 2012

is not substantiated from any corresponding documents and evidence on record that petitioner had

actually worked till 28.4.2012. On the other hand, repudiating the evidence led by the petitioner,

respondent Shri Neeraj Kumar, the then Divisional Forest Officer, Kullu Forest Division has denied

the allegations of termination of petitioner on 28.4.2012 rather he has emphasized that petitioner as

per record available worked till 2009. Nothing has come in the cross-examination of ld. counsel for

petitioner by which it could be established that petitioner had factually worked till 28th April,

2012. Enough has been emphasized, ld counsel for the petitioner that RW1 Shri Neeraj Kumar had

admitted that he had not brought record from the year 2010 to 2012. Close scrutiny of testimony of

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RW1 revealed that he had brought the relevant mandays chart for the year 1990 to 2009 which

were asked to be produced. As such, per statement of RW1 which has remained unsheltered instead

claim of petitioner to remain engaged with respondent after April, 2009 to April, 2012 gets belied

as oral as well as documentary evidence on record led by the petitioner as well as by the respondent

establishes that petitioner had worked till April, 2009 as noted above however petitioner had not

worked for 240 days rather only for 222 days in preceding her date of termination. Accordingly, it

is to be held that respondent was not required to issue any notice under Section 25-F of the

Industrial Disputes Act.

12. In so far as the plea of forest nursery work in the forest department being seasonal

in nature is concerned and at the same time the plea of respondent that petitioner herself abandoned

the job seems to be futile attempt on the part of the respondent to testify retrenchment of petitioner

in the garb of work being seasonal in nature or that petitioner was not required to be given notice as

she did not complete requisite number of days while working with the respondent. It is settled law

that plea of abandonment has to be proved like any other fact by the respondent. There is no iota of

evidence on record establishing that respondent on absence of petitioner had factually recoursed to

issuance of registered legal notice or charge sheet. As such, the plea of abandonment has to be

rejected outright. Similarly, petitioner being employed in seasonal work is not substantiated from

any notification of the Government which would show that work in nursery in the forest

department was purely in seasonal in nature. Otherwise also from mandays chart relied upon by the

respondent, it is evident that in the year 1990 petitioner herself had worked for 236 days and as

such it would be unsafe to hold that petitioner had given seasonal assignment rather plea seems to

have been raised with the object to escape liability. In view of foregoing discussions, petitioner is

held to have not proved by reliable oral evidence as well documentary under the provisions of

Section 25-F of the Industrial Disputes Act. Accordingly, retrenchment of petitioner by the

respondent finally w.e.f. 28.4.2012 could not be stated to be illegal and unjustified. Issue in hand is

answered accordingly.

ISSUE NO.2

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

Industrial Disputes Act, ld. Dy. D.A. representing respondent department has contended that

present claim petition is not maintainable as the petitioner had abandoned the job of her own and

did not join her duty despite issuance of muster roll for the relevant period. From the pleadings of

the parties and evidence on record as discussed in foregoing paras, no inference of claim petition

being not maintainable could be raised instead the same is held to be maintainable. As such, the

issue in hand is decided in favour of the petitioner and against the respondent.

ISSUE NO.3

14. 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.

ISSUE NO.4

15. Ld. Dy. D.A. representing respondent/department has contended with vehemence that

claim petition is barred by limitation on account of delay and laches. It has been pointed that

termination of petitioner in this case took place on April, 2012 and the industrial dispute was raised

after several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR for the

petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court of

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H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be

considered by court at the time of granting final relief however in various other judgments even

longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,

Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High

Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar

view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-

cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that

the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes

Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the

ground of delay. It has been contended that delay if any raised by employer is required to be proved

as a matter of fact and that no reference made by appropriate government can be questioned on the

ground of delay alone. In the case in hand, respondent department has failed to prove on record any

material by which it could be stated that there was inordinate delay which has remained

unexplained due to which any prejudice had been caused to the respondent rather petitioner in his

evidence has highlighted and proved material facts establishing that on account of conciliation

proceeding before authority under Act, industrial dispute was not raised by petitioner immediately

or earlier on retrenchment and finally raised when his services were illegally terminated. Thus, the

petition filed by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question

thus is accordingly answered in negative against respondent and in favour of petitioner.

RELIEF

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

In the peculiar circumstances of the case, the parties are left to bear their own costs.

17. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 7th day of January, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Dharamshala, H.P.

___________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 76/2014

Date of Institution : 24.02.2014

Date of Decision : 15.01.2016

Shri Man Dass s/o Shri Sita Ram, r/o Village Kanda Guard, P.O. Barindi, Tehsil Karsog,

Distt. Mandi, H.P.

.…Petitioner

Versus

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The Superintending Engineer, Irrigation & Public Health Circle, Sunder Nagar, Distt.

Mandi, H.P.

The Executive Engineer, Irrigation & Public Health Division, Karsog, Distt. Mandi,

H.P.

….Respondents

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

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent(s) : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

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

adjudication:

“Whether Sh. Man Dass S/O Sh. Sita Ram, R/O Village Kanda Guard, P.O. Barindi, Tehsil

Karsog, Distt. Mandi, H.P. is eligible for regularization on the post of beldar as per policy

of the Government, of H.P. after granting him relaxation in minimum educational

qualification by the i) The Superintending Engineer, Irrigation & Public Health Circle,

Sundar Nagar, Distt. Mandi, H.P. & ii) The Executive Engineer, Irrigation and Public

Health Division, Karsog, Distt. Mandi, H.P.? If yes, what are his entitlements to relief like

back wages, seniority and other consequential service benefits?”

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

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

Brief facts as stipulated in the present claim petition reveal that petitioner

claimant/petitioner was engaged as daily waged beldar on 21.4.1987 whose services had been

illegally terminated on 21.7.1989 for which he raised industrial dispute regarding his reengagement

vide reference no.2 of 2001 Presiding Judge, Labour Court, Shimla had passed award and vide

which he was directed to be reinstated. The case of the petitioner remains that he continuously

remained in service from 1987 to 2013 but his seniority has been ignored and about 50 workers

were junior to him have been regularized. The claimant/petitioner had raised industrial dispute

before the Labour Inspector Circle Sundar Nagar on 1.12.2011 consequent upon which the

reference has been received to this court in which the petitioner has alleged that his regularization

in service has been delayed by the respondents. The petitioner has also claimed that he had

completed 8 years of service but he had not been regularized which was unfair labour practice and

thus petitioner claims that his regularization be made w.e.f. 1st January, 2009 instead of 19.2.2014

as has been done by the respondent.

The respondents no.1 and 2 contested claim petition, filed joint reply inter-alia taken

preliminary objections of maintainability and delay and laches. On merits admitted that petitioner

had been engaged with the department w.e.f. 21.4.1987 to 20.4.1989 however denied that petitioner

was disengaged from 21.4.1989. It is alleged that petitioner had left the job after April, 1989

without any intimation and thereafter he had worked continuously 240 days from calendar year

2001 till his regularization on 19.2.2014. Vide award no. 2/2001 passed by the Labour Court

Shimla, the petitioner has been granted seniority w.e.f. 19.1.2001 and had completed eight years of

service on 31.12.2008 but he could not be regularized as he did not fulfill the eligibility criteria as

per R&P Rules petitioner did not possess minimum qualification on date when regularization

process was considered. It is alleged that petitioner had been considered for regularization as per

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latest policy of the government from prospective date and regularized on 19.2.2014 and relaxation

of R&P Rules however only those persons whose named have been mentioned in the claim petition

were regularized as they had fulfilled the criteria of regularization as per R&P Rules and policy of

the State government. Merely, it is asserted that petitioner was although not regularized when initial

service of 8 years had been completed in the year 2008 in pursuance to order of Labour Court,

Shimla but thereafter he joined in service and continued to work till 19.1.2001 for more than 240

days in each calendar year but qualification of passing 5th standard was relaxed in view of policy

adopted by the government on 19.2.2014. As such, the petitioner is stated to have been rightly

regularized when he fulfilled criteria of qualification which was relaxed in the year 2014 and thus

respondent claims to have not violated any provisions of Industrial Disputes Act or recoursed to

any unfair labour practice as alleged by the petitioner. Accordingly, petition was sought to be

dismissed.

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

is contended that rules of recruitment and promotion which have not been adhered to by the

respondent.

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

her affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B copy of letter dated 18.1.2012,

copy of letter dated 12.4.2013 Ex. PW1/C, certified copy of judgment dated 23.11.2012 Ex. PW1/D

and closed evidence. On the other hand, repudiating the evidence led by the petitioner, respondent

examined RW1 Shri Lekh Ram Chaudhary, the then Superintending Engineer, I&PH Circle

Sundarnagar, tendered/proved his affidavit Ex. RW1/A under Order 18 Rule 4 CPC, Ex. RW1/B

mandays chart, list of daily wage workers Ex. RW1/C, copy of letter dated 1.1.2014 Ex. RW1/D,

Ex. RW1/E copy of letter dated 7.12.2013, Ex. RW1/F copy of proceedings dated 28.1.2014 Ex.

RW1/F and closed evidence.

I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

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

11.11.2014 for determination:

(1) Whether the petitioner is eligible for regularization on the post of beldar as per policy

of the Government of H.P. after granting him relaxation in minimum educational

qualification by the respondent is illegal and unjustified as alleged. If so, its effect?

OPP

(2) Whether the claim petition is not maintainable in the present form?

OPR

(3) Whether the petition is bad on account of delay and laches as alleged. If so, its effect?

OPR

(4) Relief.

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

Issue No.1

: No

Issue No.2

: Yes

Issue No.3

: No

Relief

: Petition is dismissed per operative part of the Award.

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REASONS FOR FINDINGS

ISSUE NO.1

10. The grievance of the petitioner can be gathered from his pleadings and evidence

remains that petitioner should have been regularized from 1.1.2009 and his regularization vide

order dated 19.2.2014 was not correct as his juniors were regularized who have not been considered

for promotion earlier.

11. Stepping into witness box, petitioner has reiterated his stand as maintained in the claim

petition in which he has alleged about allegation of ignoring his seniority and regularization of 50

workers were junior to him. The case of respondent, on the other hand, remains that petitioner was

not qualified for regularization. He has not possessed minimum qualification of 5th standard. Thus,

the bone of contention remains with regards period when petitioner was factually eligible and if he

was regularized in 2014 the same of the contravention of any provisions of law.

12. Cross-examination of the petitioner revealed that even on the date of examination on

oath before this court on 1.7.2015, he had not passed 5th standard. Significantly, he has admitted in

cross-examination that those persons who were working with him were regularized as they

possessed minimum education qualification which is required. In so far as the previous service of

the petitioner from 21.4.1987 to 20.4.1989 is concerned, respondent in their reply have admitted

that petitioner had worked during these period and even after passing of award in reference

no.2/2001 of Labour Court, Shimla he had been given seniority. Be it noticed that petitioner has not

produced on record qua notification dated 19.2.2014 however he has challenged the action of

respondent not regularizing his service on the ground that even earlier policy of government he did

not present minimum qualification. It is not the case of petitioner that policy for regularization of

qualification was available when he completed 8 years of service rather petitioner had completed

minimum 8 years of service with 240 days working in each calendar year along-with exemption in

qualification when notification of February, 2014 took place although respondents have not

disputed regularization of 50 workers junior to the petitioner yet this would not help petitioner in

any manner. The petitioner himself in his cross-examination has admitted that the persons who

were regularized earlier possessed minimum qualification as well as requisite years of service.

Issue no.1 is answered in negative holding that regularization of petitioner on the post of beldar as

per policy of the State Govt. after granting relaxation in minimum qualification by the respondents

could not be stated illegal and unjustified rather petitioner has been regularized when he was

exempted from minimum education qualification and possessed requisite number of working

days/years. Issue no.1 is accordingly answered in negative.

ISSUE NO.2

13. Ld. Dy. D.A. representing for State contended with vehemence that claim petition is not

maintainable. In support of his contention he has pointed through reply and evidence on record that

petitioner was not eligible to be considered for regularization till he possessed minimum

qualification or till the contention for minimum qualification was exempted. That being so, the

previous regularization process began petitioner had failed to produce any record by which it could

be stated that petitioner was legally declined for being regularized in service rather he did not

possess minimum education qualification as per policy of the government but the same was made

in the year 2014. As such, issue in had is decided in favour of respondents and against the

petitioner.

ISSUE NO.3

14. Ld. Dy. D.A. for respondent State has contended with vehemence that the claim petition

is bad on account of delay and laches. It is observed from the pleadings and evidence on record that

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petitioner was working with the respondents/department even on the date of disposal of claim

petition He has admitted that due to relaxation in his qualification he had been regularized. Since,

the petitioner was not eligible to be considered for regularization prior to 2014, the claim petition

could not be stated to be dime barred. Moreso, when petitioner had invoked remedy of seeking

relief by raising industrial dispute and consequent upon industrial dispute raised and filed claim

petition. Thus, there is no delay in filing the claim petition as the petitioner learnt about his

regularization only in the year February, 2014 when notification took place and thereafter he raised

the industrial dispute and matter was sent to Labour Court for adjudication. Hence, this issue is

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

RELIEF

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

In the peculiar circumstances of the case, the parties are left to bear their own costs.

16. The reference is answered in the aforesaid terms.

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

official gazette.

18. File, after due completion be consigned to the Record Room. Announced in the open

Court today this 15th day of January, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 106/2015

Date of Institution : 09.03.2015

Date of Decision : 15.01.2016

Smt. Bindai w/o Shri Teg Ram, r/o Village Shoon, P.O. Udeen, Tehsil Pangi, District

Chamba, H.P.

….Petitioner

Versus

Executive Engineer, Killar Division, H.P.P.W.D, Killar (Pangi), District Chamba, H.P.

....Respondent

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

For the Petitioner : Sh. I.S. Jaryal, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

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AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Smt. Bindai W/O Shri Teg Ram, R/O

Village Shoon, P.O. Udeen, Tehsil Pangi, District Chamba, H.P. before the Executive

Engineer, H.P.P.W.D. Division, Killar, Tehsil Pangi, District Chamba, H.P. vide demand

notice dated 26-06-2011 regarding her alleged illegal termination of service during October,

2005 suffers from delay and latches? If not, Whether termination of the services of Smt.

Bindai W/O Shri Teg Ram, R/O Village Shoon, P.O.Udeen, Tehsil Pangi, District Chamba,

H.P. during October, 2005 by the Executive Engineer, H.P.P.W.D. Division Killar, Tehsil

Pangi, District Chamba, H.P., without complying with the provisions of the Industrial

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

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

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

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

Brief facts leading to institution of the present claim petition by the petitioner above

named reveal that she had been initially engaged as daily waged beldar on muster roll basis in the

month of September, 1995 who continuously worked till October, 2005 in HPPWD Sub Division,

Sach. Averments made in the petition further revealed that petitioner had worked for 160 days in

each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became

eligible for continuous service envisaged under statutory provisions of Section 25-B of the

Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity). Averments made in

the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial

breaks given by the respondent/department deliberately and as such breaks are required to be

counted as continuous services for the purposes of calculation of 160 days so as for the

applicability of Section 25-B of the Act. The grievance of petitioner remains that respondent/

department had terminated/disengaged petitioner from daily wage service in the end of October,

2005 by an oral order without any reason whereas several other co-workers who were junior to

petitioner had been retained on muster roll and thus the action of respondent/department was stated

to be unjustified and malafide. It is alleged that seniority list of daily wage workers working under

the respondent had not been circulated till termination/retrenchment of the petitioner and while

retrenching the services of petitioner, even principle of ‘Last come First go’ had not been followed

by the department/respondent. The petitioner has named 27 persons who were junior to petitioner

and joined service from 1st August, 1997 to 1st September, 2007. In the end of month of October,

2005 when the services of petitioner were terminated by way of oral order, she was not served with

one month notice of retrenchment and at the same time one month’s wages in lieu of notice period

had also not been paid to her and for said reason termination of the services of petitioner was prima

facie illegal and unwarranted. The claimant/petitioner claimed that she had spotless service record

who never been charge-sheeted for any act of indiscipline or negligence or her conduct and even at

the time of verbal termination, no charge-sheet had been served upon her and the at the same time,

no opportunity of hearing had been afforded to him. The petitioner also alleges that she has

remained unemployed ever since her illegal termination from month of October, 2005 till the date

of institution of present claim petition who had been nowhere gainfully employed and was thus

entitled for full back wages. Accordingly alleging respondent to have committed violation of

statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes Act,

1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting aside oral order

of termination/retrenchment by the respondent in the month of October, 2005. She further prayed

for reinstatement in service w.e.f. month of October, 2005 along- with back wages, seniority

including continuity in service as petitioner has remained unemployed since the date of her illegal

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termination. The petitioner has also prayed that period of intermittent/fictional breaks given time

and again during entire service of petitioner between July, 1995 to October, 2005 be counted 160

days continuous service and regularization of the service of petitioner w.e.f. 01.01.2004 having

completed 8 years of service and per the policy of HP Govt. in pursuance to judgment of Hon’ble

Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief petitioner is entitled.

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

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1995 who remained engaged till 2005

but had worked intermittently as petitioner used to come and attend the work at her own sweet will

and convenience. Relying upon the mandays chart, it has been categorically pleaded by the

respondent that petitioner had not completed 160 days in each calendar year as required for tribal

area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been

denied. In so far as engagement of persons junior to petitioner namely Shri Dev Raj s/o Mehar

Chand is concerned he was senior to her and other persons as mentioned in para no.4 of the claim

petition were worked with the respondent continuously. On the plea of termination of service of

petitioner, respondent specifically alleges that petitioner had left the job at her own will therefore

serving of notice or pay in lieu thereof was not required. Reiterating its stand respondent has

maintained that petitioner had left the work of her own sweet will and the persons mentioned in

para no.4 are stated to have engaged as per direction of the Labour Court-cum-Industrial Tribunal

Dharamshala as harness case. It is also contended that if petitioner had been terminated in 2005 she

would have definitely raised industrial dispute immediately and that after seven years petitioner is

stated to be agitating the matter which is bad on account of delay and laches. It is also contended

that since the services of petitioner had not been terminated by the respondent, question of issuance

of notice or wages in lieu thereof did not arise and at the same time, there was no necessity for

charge-sheet or issuing any notice of petitioner after her termination. It is contended that petitioner

was agriculturist and gainfully employed and was thus not entitled for back wages.

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

Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality

besides allegation of violation of principle of ‘Last come First go’ was specifically denied.

In order to prove her case, petitioner had examined herself as PW1 tendered/proved her

affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/L mandays charts of junior

workers and closed evidence. On the other hand, repudiating the evidence led by the petitioner,

respondent examined RW1 Shri V.K. Dhiman, the then Executive Engineer, HPPWD Division

Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, mandays chart of other co-

workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D22 copy of orders/awards and closed the

evidence.

I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.

representing respondent, gone through records of the case carefully relevant for disposed of this

case.

From the contentions raised, following issues were framed 7.7.2015 but were recasted

on 27.11.2015 for determination which are as under:

Whether the industrial dispute raised by petitioner vide demand notice dated 26.6.2011

qua her termination of service during October, 2005 by respondent suffers from the

vice of delay and laches as alleged? If so, its effect?

OPP

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Whether termination of services of the petitioner by the respondent during October,

2005 is/was improper and unjustified as alleged?

OPP

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

to?

OPP

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

OPR

Relief.

For the reasons detailed here under, my findings on the above issues are as

follows:—

Issue No.1

: Yes

Issue No.2

: Yes

Issue No.3

: Discussed

Issue No.4

: No

Relief.

: Petition is partly allowed awarding compensation Rs.1.00 lac

per operative part of 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. Relationship of petitioner having been engaged as daily waged beldar by respondent on

muster roll basis in the month of September, 1995 who continuously worked till October, 2005 at

HPPWD Sub Division Sach is not in dispute. Admittedly, petitioner was engaged without any

written order or settlement of terms and conditions by the respondent. It is equally not in dispute

that no written order was passed while terminating service of the petitioner as claim of respondent

remains that it had not retrenched petitioner from service who had abandoned the job of her own

and used to work intermittently as per her own wish and convenience. Admittedly, the reference of

appropriate govt. does not relate to plea of fictional breaks but only with regard to petitioner’s

termination from service. In the backdrop of foregoing admitted facts on record, claim of petitioner

requires to be adjudicated with a view to determine if petitioner is entitled for relief of

reinstatement and back wages along-with seniority and past service benefits and compensation as

claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating

and reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to

have worked with the respondent/department for more than 160 days in Pangi Sub Division

Chamba District and remained engaged from July, 1995 to 2005. She has also stated on oath that no

notice under Section 25-F of the Act was given by the respondent before terminating her service

and at the same time no compensation in lieu thereof notice period was paid to her and thus her

termination was illegal and void entitling petitioner benefit of reinstatement of service with full

back wages and all the other consequential service benefits. The petitioner has further alleged on

oath that respondent/department after terminating her services in October, 2005 by oral order had

engaged several co-workers who were junior to petitioner were retained in service. Not only this,

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the persons who were junior to petitioner are stated to have been regularized in service and thus

respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was

obligatory on its part. The case of petitioner also remains that she had served respondent with due

diligence and had spotless service record as respondent/department had never called any

explanation or raised charge-sheet against her but even while retrenching petitioner from service,

no notice was given. The petitioner has also explained reason for not approaching the authorities

under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba

town to Pangi Tehsil till 2011 and petitioner had moved before the Labour Officer raising demand

notice consequent upon which a failure report was submitted and as the Labour Commissioner did

not make reference for industrial dispute raised by petitioner, the petitioner had moved before the

Hon’ble High Court by filing CWP where direction was passed for making reference to the Labour

Court due to which delay had occurred and same was satisfactorily explained.

13. In so far as plea of abandonment raised by respondent is concerned, the same merits

rejection in view of the fact that respondent had failed to produce any record by which it could be

established that whenever petitioner absented from her duty as also reflected in mandays chart Ex.

RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically

admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically

admitted that no departmental inquiry was initiated against petitioner even after October, 2005. No

reason whatsoever has been assigned for such any action or omission on the part of respondent in

not initiating any departmental proceedings or making correspondence calling upon the petitioner

to join service. This prima facie belies the stand taken by the respondent as abandonment has to be

proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-examination

has specifically denied that she used to leave the job in between and attended the work

intermittently rather she has claimed that intermit breaks had been deliberately given to her by the

respondent in the service record of petitioner so that petitioner did not complete 160 days of work

as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in

absence of any specific and reliable evidence led by respondent, it would be unsafe to hold that

respondent had established plea of abandonment.

14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 70 days in the year 1995, 56 days in 1996, 133 days in 1997, 154 days in 1998, 103.5

days in 1999, 129 days in 2000, 101 days in 2001, 141.5 days in 2002, 133 days in 2003, 106 days

in 2004 and 28 days in 2005 and thus a total of her service in 1995 to 2005 in 11 years she had

worked for 1155 days in her entire service period. Be it noticed that petitioner had not worked for

more than 160 days and as there is no reference from the Labour Commissioner, Shimla on the

point of artificial breaks, this court is to confine its findings only with regard to alleged illegal

termination. It is evident from mandays chart Ex. RW1/B that in the year 2005 the petitioner had

merely worked for 28 days and thus immediately in preceding 12 calendar months from the month

of termination of petitioner had not rendered service of 160 days so as to meet requirement of law

of having continuous service of one year and thus it was not at all required from respondent to have

issued a notice envisaged under Section 25-F of the Act. As such, the respondent is held to have not

violated the provisions of Section 25-F of the Act.

15. Ld. Authorized Representative for petitioner has contended with vehemence that large

number of workers who were junior to petitioner had been appointed from 01.8.1997 to 07.9.1999

and these workers have been retained in service and regularized. The grievance of petitioner

remains that principle of ‘Last come First go’ was not followed as the juniors were retained and

services of petitioner despite being senior was terminated without any valid reason. Ex. PW1/B, Ex.

PW1/C, Ex. PW1/D are the year-wise mandays of daily waged workers who were junior to the

petitioner and had joined in the year 2000 or thereafter whereas Ex. PW1/E to Ex. PW1/L are the

mandays chart of other co- workers. All of these co-workers shown in Ex. PW1/C the year-wise

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mandays details of workers of Division HPPWD Killar were certainly junior to petitioner who were

given sufficient work existing in those years more than 200 days in a year whereas the petitioner

had been not given muster roll for the whole month. Ex. RW1/C also established that all the co-

workers shown in this document have worked for more than 160 days in most of the years although

they were junior to petitioner. Evidently, there is no iota of evidence of respondent establishing that

petitioner was called upon to join for service at any time after October, 2005 even at the time when

junior persons were reengaged. That being so the respondent had certainly violated the provisions

of Section 25-G of the Act as the juniors workers mentioned in para no.3 of the affidavit were

retained whereas petitioner was senior from these co-workers having joined service in 1995 was

terminated and even thereafter respondent omitted to afford opportunity to petitioner for

reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.

Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of

India vs. S. Satyam, 1996 (5) SCC 419 in which Hon’ble Apex Court has held that for the

applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner

to have worked for 240 days as in case of provisions of Section 25-F of the Act.

16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile

attempt to justify engagement of junior workers and their retention in service on the basis of orders

of Labour Court-cum-Industrial Tribunal as well as Hon’ble High Court of H.P. as reflected in Ex.

RW1/D1 to Ex RW1/D22. These judgments/orders have been gone through which revealed that

respondent had wrongly terminated the services of those claimant/petitioner and for said reasons

they were directed to be reinstated. Thus, plea that persons were directed to be appointed in

pursuance to awards/orders Ext. Rw1/D1 to Ex. RW1/D22 were primarily on the basis of court

orders would not defeat the claim of the petitioner as status of these person being junior to

petitioner does not get negatived. As such, even when petitioner is proved to have not worked for

more than 160 days in preceding 8 years which entitled her for regularization of her service per

government policy, yet respondent is not absolved from its accountability of provisions of Section

25-G and 25-H of the Act and as such it is held that respondent had violated the provisions of

Sections 25-G and 25-H of the Industrial Disputes Act.

17. Ld. Authorized Representative for petitioner has contended that after petitioner’s

termination in October, 2005, she had remained unemployed and was not earning anything

thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized

Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross-

examination of the petitioner who has admitted that she had cultivatable land with her and also

worked a private labourer. Thus, plea of having remained not gainfully employed gets belied

admission of petitioner in cross-examination in which she had maintained that she had been earning

from agricultural land as well as she has been working as daily wager privately. Reliance has been

placed on the judgment of Hon’ble Apex Court North East Karnataka Road Transport

Corporation vs. M. Nagangouda (2007) 10 SCC 765 in which Division Bench comprising of

Justice A.R. Lakshmanan and Justice Altamas Kabir had held that ‘term gainfully employment

would also include self employment wherefrom income is generated. It was income either

from employment in an establishment or from self employment merely differentiates the

sources from which income is generated, the end use being the same’. Applying the ratio of

judgment of 2007 (supra) to this case since the petitioner was earning from her agricultural and

manual pursuits, the same were sufficient to maintain her and her family. It is thus held that

petitioner was gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu

Surwase’s case has held that the Labour Court was not justified in holding that merely because the

respondent was receiving agriculture income, she cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for her livelihood it cannot

be stated that petitioner was not gainfully employed and thus would not be entitled full back wages.

In view of the forgoing discussion, it is held that the relationship of workman and employer existed

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between petitioner and respondent and that petitioner was illegally retrenched without compliance

of Section 25-G and Section 25-H of the Act although remained gainfully employed after her

retrenchment. Thus, applying the ratio of judgment of Hon’ble Apex Court (2007 supra), it may not

be erroneous to hold that petitioner was gainfully employed and thus would be not entitled for back

wages for the period she was out of job on being terminated by the respondent.

18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate

and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.

Authorized Representative for the petitioner has relied upon the judgment of Hon’ble Apex Court

titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab

IC 4266 (SC) and the relevant paras of the judgment are produced below for reference:

“12. Therefore, in our considered view, the observations made by this Court in the

Rajasthan State Agriculture Marketing Board case (supra) upon which the learned

Additional Advocate General for the State of Haryana has placed reliance cannot be

applied to the fact situation of the case on hand, for the reason that the Labour Court

has erroneously rejected the reference without judiciously considering all the relevant

factors of the case particularly the points of dispute referred to it and answered the 2nd

issue regarding the reference being barred by limitation but not on the merits of the

case. The said decision has no application to the fact situation and also for the reason

the catena of decisions of this Court referred to supra, wherein this Court has

categorically held that the provisions of Limitation Act under Article 137 has no

application to make reference by the appropriate government to the Labour

Court/Industrial Tribunal for adjudication of existing industrial dispute between

workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour

Court is not adjudicated by it, it does not mean that the dispute ceases to exist.

The appropriate government in exercise of its statutory power under Section 10(1)(c)

of the Act can refer the industrial dispute, between the parties, at any time, to either the

jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon

Services case referred to supra. Therefore, the State Government has rightly exercised

its power under Section 10(1)(c) of the Act and referred the points of dispute to the

Labour Court as the same are in accordance with the law laid down by this Court in

Avon Services & Sapan Kumar Pandit cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom

District Manager, Karnataka[4] it was held by this Court as follows-

“17. It was submitted on behalf of the respondent that on account of delay in raising

the dispute by the appellants the High Court was justified in denying relief to the

appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union

of India and Ors. (supra)1993 AIR SCW 2214, it was held that a casual labourer

retrenched by the employer deprives herself of remedy available in law by delay

itself, lapse of time results in losing the remedy and the right as well. The delay

would certainly be fatal if it has resulted in material evidence relevant to

adjudication being lost and rendered not available. However, we do not think that

the delay in the case at hand has been so culpable as to disentitle the appellants for

any relief.....” (Emphasis laid by the Court) In view of the legal principles laid

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down by this Court in the above judgment, the reference of the industrial dispute

made in the case on hand by the State Government to the Labour Court to

adjudicate the existing industrial dispute between the parties was made within a

reasonable time, considering the circumstances in which the workman was placed,

firstly, as there was a criminal case pending against her and secondly, the

respondent had assured the workman that she would be reinstated after her

acquittal from the criminal case. Moreover, it is reasonable to adjudicate the

industrial dispute in spite of the delay in raising and referring the matter, since

there is no mention of any loss or unavailability of material evidence due to the

delay. Thus, we do not consider the delay in raising the industrial dispute and

referring the same to the Labour Court for adjudication as gravely erroneous and

it does not debar the workman from claiming rightful relief from her employer.

15. In the case of Ajaib Singh v. The Sirhind Co-Operative Marketing Cum- Processing

Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to

the workman merely on the ground of delay, stating that:-

“10. It follows, therefore, that the provisions of Article 137 of the Schedule to

Limitation Act, 1963 are not applicable to the proceedings under the act and that

the relief under it cannot be denied to the workman merely on the ground of

delay. The plea of delay if raised by the employer is required to be proved as a

matter of fact by showing the real prejudice and not as a merely hypothetical

defence. No reference to the labour court can be generally questioned on the

ground of delay alone. Even in a case where the delay in shown to be existing, the

tribunal, labour court or board, dealing with the case can appropriately mould the

relief by declining to grant back wages to the workman till the date she raised the

demand regarding her illegal retrenchment/ termination or dismissal. The Court

may also in appropriate cases direct the payment of part of the back wages instead

of full back wages.....” (Emphasis laid by the Court)

16. Hence, we are of the opinion, having regard to the fact and circumstances of the case

that there is no delay or latches on the part of the workman from the date of her

acquittal in the criminal case. Thereafter, upon failure of the respondent in adhering to

the assurance given to the workman that she would be reinstated after her acquittal

from the criminal case, the workman approached the conciliation officer and the State

Government to make a reference to the Labour Court for adjudication of the dispute

with regard to the order of dismissal passed by the respondent. Keeping in mind the

date of acquittal of the appellant and the date on which she approached the conciliation

officer by raising the dispute, since the respondent had not adhered to its assurance, the

State Government had rightly referred the dispute for its adjudication. Therefore it

cannot be said that there was a delay on the part of the appellant in raising the dispute

and getting it referred to the Labour Court by the State Government.

17. Further, the Labour Court on an erroneous assumption of law framed the

additional issue regarding the limitation in raising the dispute and its reference

by the State Government to the Labour Court. Thus, the Labour Court has ignored

the legal principles laid down by this Court in the cases referred to supra. The award

passed by the Labour Court was accepted erroneously by both the learned single Judge

and the Division Bench of the High Court by dismissing the Civil Writ Petition & the

Letters Patent Appeal without examining the case in its proper perspective, keeping in

view the power of the State Government under Section 10(1)(c) and the object and

intendment of the Act. Not adjudicating the existing industrial dispute on merits

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between the parties referred to it may lead to disruption of industrial peace and

harmony, which is the foremost important aspect in Industrial Jurisprudence as the

same would affect the public interest at large.

19. Ld. counsel representing respondent department has also contended with

vehemence that claim petition is barred by limitation on account of delay and laches. It has been

pointed that termination of petitioner in this case took place on 2005 and the industrial dispute was

raised after several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR for the

petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court of

H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be

considered by court at the time of granting final relief however in various other judgments even

longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,

Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High

Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar

view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketing-

cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that

the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes

Act.

20. Relying upon the aforestated judgment, it has been contended that claim of petitioner

cannot be defeated on the point of delay and laches. Repudiating arguments advanced by ld.

Authorized Representative for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of

Hon’ble Apex Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing

Board, Sub-Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the

judgment are produced below for reference:

Industrial Disputes Act, 1947-Sections 25-F and 10- Limitation Act, 1963- Section 5-

Industrial dispute- Termination of service-Finding of Lboaur Court that workman had

completed 240 days in calander year and her termination was in violation o section 25-F of

the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during

employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years of

termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial

discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the

workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac

directed to be paid to the workman by the appellant-employer within six weeks failing

which interest @ workman 9% p.a. will be payable. [Paras 21 and 22]

Limitation Act, 1963. Section 5- Industrial Disputes Act, 1947- Section 25-F- Termination

of service- Industrial dispute raised after six years- Limitation Act not applicable to

reference made under the I.D. Act-Delay in raising industrial disputes definitely an

important circumstances which the Labour Court must keep in view before granting

relief”.

I have gone through the rival contention of the ld. Authorized Representative as well as ld.

Dy. D.A. for State. Keeping in view the mandate of Hon’ble Apex Court in various

judgments referred to above it is held that delay in raising industrial dispute is definitely an

important circumstance and court has to keep in mind while exercising discretion. In para

nos. 20 and 21 of judgment 2013 supra has referred to Gitam Singh’s case reported in 2013

(136) FLR 893 (SC) titled as Assistant Engineer Rajasthan Development Corporation

and another vs. Geetam Singh observing that before exercising its judicial discretion, the

Labour Court has to keep in view all relevant factors including the mode and manner of

appointment, nature of employment, length of service, the ground on which termination has

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been set aside and the delay in raising industrial dispute before grant of relief in an

industrial dispute. It was observed by the Hon’ble Apex Court in judgment (2013 supra)

before that workman had worked for 286 days and had raised industrial dispute in 1992

whereas her services have been terminated in 1986 and she raised industrial dispute after six

years. The Hon’ble Apex Court has held that though compensation awarded by Single

Judge of the Hon’ble High Court was too low and liable to be enhanced by the Division

Bench but surely reinstatement of the workman in the facts and circumstances is not

the appropriate relief and thus Hon’ble Apex Court awarded a lump-sum of Rs.1 lakh

along-with interest @ 9% per annum if the respondent failed to make payment

ofcompensation within six weeks from the date of judgment. In the case in hand before this

court factors which have weighed are that the petitioner in all remained engaged for about

11 years and actually worked for 1155 days as per mandays chart on record and that the

services of petitioner were disengaged in October, 2005 who worked as non skilled worker

and had raised industrial dispute by issuance of demand notice after about six years i.e.

demand notice was given on 26.6.2011. Taking into consideration factors mentioned above

in pursuance to judgments of Hon’ble Apex Court petitioner would not be entitled either for

reinstatement or for back wages but compensation a lump-sum would be appropriate relief

in view of judgment 2013 (139) FLR 25 (SC). The judgments relied upon by ld. Authorized

Representative for petitioner on the matter of delay and laches is more or less settled law

that claim of the petitioner could not be solely declined on the ground of delay and laches.

Similarly, judgment of Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also

does not come to the rescue of the petitioner as in this judgment also the Hon’ble Apex

Court has reiterated the mandate as given by the Hon’ble Apex Court in previous judgment

in the year 2013 i.e. Assistant Engineer, Rajasthan State Agriculture Marketing Board,

Sub-Division Kota and Mohan Lal’s case.

21. In view of foregoing discussion, a lump-sum compensation of Rs.1,00,000/- (Rupees

one lac only) would be a appropriate relief to which the petitioner is entitled in the facts and

circumstances of the case as stated above. It is further made clear that amount of compensation

shall be paid within three months from the date of Award failing which the petitioner would be

entitled for interest @ 9% per annum from date of Award and its realization. Issues no. 1 to 3 are

answered accordingly.

ISSUE NO.4

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

Industrial Disputes Act, ld. Dy. D.A. representing respondent department has failed to allege in

reply in what manner petition is not maintainable. Thus, vague plea merits rejection outright.

Otherwise also, from pleadings and evidence on record, no inference of claim petition being not

maintainable could be raised against claimant/petitioner. This issue is decided in favour of

petitioner and against the respondent.

RELIEF

23. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay

the compensation of Rs.1,00,000/- (Rupees one lac only) to the petitioner in lieu of the

reinstatement in services as well as the other consequential service benefits. Amount of

compensation so awarded shall be paid by the respondent to the petitioner within four months from

today failing which the respondent shall be liable to pay the interest @ 9% per annum on the said

amount from the date of award till the date of its realization. In the peculiar circumstances of the

case, the parties are left to bear their own costs.

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24. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 15th day of January, 2016.

(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. : 116/2015

Date of Institution : 13.03.2015

Date of Decision : 15.01.2016

Shri Devi Chand s/o Shri Chet Ram, r/o Village Ghissal, P.O. Sach, Tehsil Churah, District

Chamba, H.P.

….Petitioner

Versus

Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District Chamba,

H.P.

....Respondent

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

For the Petitioner:

Sh. I.S. Jaryal, AR

For the Respondent:

Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Devi Chand S/O Shri Chet Ram,

R/O Village Ghissal, P.O. Sach, Tehsil Churah, District Chamba, H.P. before the Executive

Engineer, H.P.P.W.D. Division, Killar, District Chamba, H.P. vide demand notice dated

19.10.2009 regarding his alleged illegal termination of service w.e.f. October, 2005 suffers

from delay and latches? If not, Whether termination of the services of Shri Devi Chand S/O

Shri Chet Ram, R/O Village Ghissal, P.O. Sach, Tehsil Churah, District Chamba, H.P. by

the Executive Engineer, H.P.P.W.D. Division Killar, District Chamba, H.P. w.e.f. October,

2005 without complying the provisions of the Industrial Disputes Act, 1947, is legal and

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

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

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

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

Brief facts leading to institution of the present claim petition by the petitioner above

named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the

month of April/May, 2002 who continuously worked till October, 2005 in HPPWD Sub Division

Sach. Averments made in the petition further revealed that petitioner had worked for 160 days in

each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became

eligible for continuous service envisaged under statutory provisions of Section 25-B of the

Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity). Averments made in

the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial

breaks given by the respondent/department deliberately and as such breaks are required to be

counted as continuous services for the purposes of calculation of 160 days so as for the

applicability of Section 25-B of the Act. The grievance of petitioner remains that

respondent/department had terminated/disengaged petitioner from daily wage service in the end of

October, 2005 by an oral order without any reason whereas several other co-workers who were

junior to petitioner had been retained on muster roll and thus the action of respondent/department

was stated to be unjustified and malafide. It is alleged that seniority list of daily wage workers

working under the respondent had not been circulated till termination/retrenchment of the petitioner

and while retrenching the services of petitioner, even principle of ‘Last come First go’ had not been

followed by the department/respondent. The petitioner has named 27 persons who were junior to

petitioner and joined service from 1st August, 1997 to 1st September, 2007. In the end of month

of October, 2005 when the services of petitioner were terminated by way of oral order, he was not

served with one month notice of retrenchment and at the same time one month’s wages in lieu of

notice period had also not been paid to him and for said reason termination of the services of

petitioner was prima facie illegal and unwarranted. The claimant/petitioner claimed that he had

spotless service record who never been charge-sheeted for any act of indiscipline or negligence or

his conduct and even at the time of verbal termination, no charge-sheet had been served upon him

and the at the same time, no opportunity of hearing had been afforded to him. The petitioner also

alleges that he has remained unemployed ever since his illegal termination from month of October,

2005 till the date of institution of present claim petition who had been nowhere gainfully employed

and was thus entitled for full back wages. Accordingly alleging respondent to have committed

violation of statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial

Disputes Act, 1947 and Article 14 and 16 of Constitution of India, the petitioner prays for setting

aside oral order of termination/retrenchment by the respondent in the month of October, 2005. He

further prayed for reinstatement in service w.e.f. month of October, 2005 along-with back wages,

seniority including continuity in service as petitioner has remained unemployed since the date of

his illegal termination. The petitioner has also prayed that period of intermittent/fictional breaks

given time and again during entire service of petitioner between April/May, 2002 to October, 2005

be counted 160 days continuous service and regularization of the service of petitioner w.e.f.

01.01.2010 having completed 8 years of service and per the policy of HP Govt. in pursuance to

judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to any other relief

petitioner is entitled.

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

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 2000 who remained engaged till 2005

but had worked intermittently as petitioner used to come and attend the work at his own sweet will

and convenience. Relying upon the mandays chart, it has been categorically pleaded by the

respondent that petitioner had not completed 160 days in each calendar year as required for tribal

area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been

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denied. In so far as engagement of persons junior to petitioner namely Shri Dev Raj s/o Mehar

Chand, Shri Raj Kumar s/o Shri Amar Nath and Shri Karam Dev s/o Shri Lala Ram are concerned

they were senior to him and other persons as mentioned in para no.4 of the claim petition were

worked with the respondent continuously. On the plea of termination of service of petitioner,

respondent specifically alleges that petitioner had left the job at his own will therefore serving of

notice or pay in lieu thereof was not required. Reiterating its stand respondent has maintained that

petitioner had left the work of his own sweet will and the persons mentioned in para no.4 are stated

to have engaged as per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as

haraness case. It is also contended that if petitioner had been terminated in 2005 he would have

definitely raised industrial dispute immediately and that after seven years petitioner is stated to be

agitating the matter which is bad on account of delay and laches. It is also contended that since the

services of petitioner had not been terminated by the respondent, question of issuance of notice or

wages in lieu thereof did not arise and at the same time, there was no necessity for charge-sheet or

issuing any notice of petitioner after his termination. It is contended that petitioner was agriculturist

and gainfully employed and was thus not entitled for back wages.

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

Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality

besides allegation of violation of principle of ‘Last come First go’ was specifically denied.

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, Ex. PW1/B to PW1/E mandays charts of

junior workers and closed evidence. On the other hand, repudiating the evidence led by the

petitioner, respondent examined RW1 Shri V.K. Dhiman, the then Executive Engineer, HPPWD

Division Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, mandays chart of

other co-workers Ex. RW1/C, Ex. RW1/D1 to Ex. RW1/D7 copy of orders/awards and closed the

evidence.

I have heard the ld. Authorized Representative of petitioner and ld. Dy. D.A.

representing respondent, gone through records of the case carefully relevant for disposed of this

case.

From the contentions raised, following issues were framed 7.7.2015 but were recasted

on 27.11.2015 for determination which are as under:

Whether the industrial dispute raised by petitioner vide demand notice dated

19.10.2009 qua his termination of service during October, 2005 by respondent suffers

from the vice of delay and laches as alleged? If so, its effect?

OPP

Whether termination of services of the petitioner by the respondent during October,

2005 is/was improper and unjustified as alleged?

OPP

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

to?

OPP

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

OPR

Relief.

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For the reasons detailed here under, my findings on the above issues are as

follows:—

Issue No.1

: Yes

Issue No.2

: Yes

Issue No.3

: Discussed

Issue No.4

: No

Relief.

: Petition is partly allowed awarding compensation Rs.50,000/-

per operative part of 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. Relationship of petitioner having been engaged as daily waged beldar by respondent on

muster roll basis in the month of April/May, 2000 who continuously worked till October, 2005 at

HPPWD Sub Division Sach is not in dispute. Admittedly, petitioner was engaged without any

written order or settlement of terms and conditions by the respondent. It is equally not in dispute

that no written order was passed while terminating service of the petitioner as claim of respondent

remains that it had not retrenched petitioner from service who had abandoned the job of his own

and used to work intermittently as per his own wish and convenience. Admittedly, the reference of

appropriate govt. does not relate to plea of fictional breaks but only with regard to petitioner’s

termination from service. In the backdrop of foregoing admitted facts on record, claim of petitioner

requires to be adjudicated with a view to determine if petitioner is entitled for relief of

reinstatement and back wages along-with seniority and past service benefits and compensation as

claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating

and reaffirming his pleadings as stipulated in claim petition. In his affidavit he has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged in 2000 to 2005. He has also stated on oath that no notice under

Section 25-F of the Act was given by the respondent before terminating his service and at the same

time no compensation in lieu thereof notice period was paid to him and thus his termination was

illegal and void entitling petitioner benefit of reinstatement of service with full back wages and all

the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in October, 2005 by oral order had engaged

several co-workers who were junior to petitioner were retained in service. Not only this, the

persons who were junior to petitioner are stated to have been regularized in service and thus

respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was

obligatory on its part. The case of petitioner also remains that he had served respondent with due

diligence and had spotless service record as respondent/department had never called any

explanation or raised charge-sheet against him but even while retrenching petitioner from service,

no notice was given. The petitioner has also explained reason for not approaching the authorities

under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba

town to Pangi Tehsil till 2011 and petitioner had moved before the Labour Officer raising demand

notice consequent upon which a failure report was submitted and as the Labour Commissioner did

not make reference for industrial dispute raised by petitioner, the petitioner had moved before the

Hon’ble High Court by filing CWP where direction was passed for making reference to the Labour

Court due to which delay had occurred and same was satisfactorily explained.

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13. In so far as plea of abandonment raised by respondent is concerned, the same merits

rejection in view of the fact that respondent had failed to produce any record by which it could be

established that whenever petitioner absented from his duty as also reflected in mandays chart Ex.

RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically

admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically

admitted that no departmental inquiry was initiated against petitioner even after October, 2005. No

reason whatsoever has been assigned for such any action or omission on the part of respondent in

not initiating any departmental proceedings or making correspondence calling upon the petitioner

to join service. This prima facie belies the stand taken by the respondent as abandonment has to be

proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-examination

has specifically denied that he used to leave the job in between and attended the work intermittently

rather he has claimed that intermit breaks had been deliberately given to him by the respondent in

the service record of petitioner so that petitioner did not complete 160 days of work as required for

Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in absence of any

specific and reliable evidence led by respondent, it would be unsafe to hold that respondent had

established plea of abandonment.

14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 71 days in the year 2000, 79 days in 2004 and 75 days in 2005 and thus a total of his

service in 2000 to 2005 in 3 years he had worked for 223 days in his entire service period. Be it

noticed that petitioner had not worked for more than 160 days and as there is no reference from the

Labour Commissioner, Shimla on the point of artificial breaks, this court is to confine its findings

only with regard to alleged illegal termination. It is evident from mandays chart Ex. RW1/B that in

the year 2005 the petitioner had merely worked for 75 days and thus immediately in preceding 12

calendar months from the month of termination of petitioner had not rendered service of 160 days

so as to meet requirement of law of having continuous service of one year and thus it was not at all

required from respondent to have issued a notice envisaged under Section 25-F of the Act. As such,

the respondent is held to have not violated the provisions of Section 25-F of the Act.