jkti=] fgekpy izns'k

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

lkseokj] 25 vizSy] 2016@5 oS'kk[k 1938

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 08^th April, 2016

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

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

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

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

Himachal Pradesh:—

18&jkti=@2016&25&04&2016 ¼363½

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Sr. No.

Ref. No.

Petitioner

Respondent

Date of

Award/Order

69/14

Netar Singh

SE, HPSEBL, Dalhousie

16-02-2016

121/15

Bimla Kumari

E.E. HPPWD, Killar

17-02-2016

107/15

Hari

E.E. HPPWD, Killar

17-02-2016

105/15

Pan Dei

E.E. HPPWD, Killar

17-02-2016

118/15

Haziri Devi

E.E. HPPWD, Killar

17-02-2016

165/15

Prem Singh

E.E. HPPWD, Killar

17-02-2016

132/15

Khimlu Devi

E.E.HPPWD, Joginder Nagar

19-02-2016

318/14

Kali Dass

E.E.HPPWD, Joginder Nagar

24-02-2016

356/14

Kishan Chand

E.E.HPPWD, Joginder Nagar

24-02-2016

10.

176/15

Nand Lal

E.E.HPPWD, Killar

25-02-2016

11.

178/15

Bhagat Ram

E.E.HPPWD, Killar

25-02-2016

12.

367/15

Ranjeet Singh

E.E. HPPWD, Joginder Nagar

26-02-2016

13.

267/14

Roshan Lal

D.F.O. Suket

26-02-2016

14.

267/15

Mohinder Singh

E.E. HPSEBL, Mandi

29-02-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

___________

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

CUMINDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.(Camp at Chamba)

Ref: No. 69/ 2014

Shri Netar Singh s/o Shri Shayam Lal, r/o Village and P.O. Karyuni, Tehsil Pangi, District

Chamba, H.P.

. Petitioner.

Versus

Superintending Engineer, Operation Circle, HPSEB Limited, Dalhousie, District Chamba,

H.P.

. .Respondent.

16-02-2016 Present: None for the petitioner.

Sh. Madan Rawat, adv. csl. for the respondent

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Case called several times but none has appeared on behalf of the petitioner despite due

knowledge. It is 11.30 A.M. Be awaited and put up after lunch hours.

(K.K.Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

___________

16-02-2016 Present: None for the petitioner.

Sh. Madan Rawat, adv. csl. for the respondent.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.35 P.M. None appearance petitioner or his ld. counsel today is indicative of the fact that he is not

interested to pursue present reference and accordingly reference is disposed of for non-prosecution.

Reference is answered in the aforesaid terms. The parties to bear their own costs.

Let copy of the Order/Award be sent to the appropriate Government for information and

further necessary action / publication. The file, after completion be consigned to the records.

(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) (CAMP AT CHAMBA)

Ref No. : 121/2015

Date of Institution : 13.03.2015

Date of Decision : 17.02.2016

Smt. Bimla Kumari w/o Shri Tara Chand, r/o Village Chask, P.O. Seichu, Tehsil Pangi,

District Chamba, H.P.

. .Petitioner.

Versus

The Executive Engineer, H.P.P.W.D. Division, 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

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

adjudication:

“Whether the industrial dispute raised by the worker Smt. Bimla Kumari W/O Shri Tara

Chand, R/O Village Chask, P.O. Seichu, Tehsil Pangi, District Chamba, H.P. before the

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

notice dated –nil received on 05.07.2011 regarding her alleged illegal termination of service

w.e.f. October, 2004 suffers from delay and latches? If not, Whether termination of the

services of Smt. Bimla Kumari W/O Shri Tara Chand, R/O Village Chask, P.O. Seichu,

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

Killar, District Chamba, H.P. w.e.f. October, 2004 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?”

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 May, 1992 who continuously worked till October, 2004 in IPH Sub Division, Killar.

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, 2004 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, 2004 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, 2004 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, 2004. She further prayed for reinstatement in service w.e.f. month of

October, 2004 alongwith back wages, seniority including continuity in service as petitioner has

remained unemployed since the date of her illegal termination. The petitioner has also prayed that

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period of intermittent/fictional breaks given time and again during entire service of petitioner

between May, 1992 to October, 2004 be counted 160 days continuous service and regularization of

the service of petitioner w.e.f. 01.01.2002 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.

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 1994 who remained engaged till 2004

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 mentioned at serial nos. 1 to 25 in

para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 26 &

27 as harness case. 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 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 2004 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.

6. 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 Pramod Upreti, 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/D21 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 on 28.8.2015 for

determination:

1. Whether termination of services of the petitioner by the respondent during the year

October, 2004 is/was improper and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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3. Whether the claim petition is not maintainable in the present form as alleged? . .OPR.

Whether the claim petition is bad on account of delay and laches on part of the

petitioner as alleged. If so, its effect?

. .OPR.

Relief.

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

Issue No.1 : Yes

Issue No.2 : Discussed

Issue No.3 : No

Issue No.4 : No

Relief. :

Petition is partly allowed awarding compensation Rs.80,000/- per operative

part of award.

REASONS FOR FINDINGS

ISSUES NO.1, 2 AND 4

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 May, 1994 who continuously worked till October, 2004 at IPH

Sub Division Killar 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 her.

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 May, 1994 to October, 2004. 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, 2004 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 she had served respondent with due

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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, 2004. 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 20 days in the year 1994, 28.5 days in 1995, 142 days in 1996, 159 days in 1997, 42

days in 1998, 135 days in 1999, 124 days in 2000, 92 days in 2001, 44.5 days in 2002, 75 days in

2003 and 96 days in 2004 and thus a total of her service in 1994 to 2004 in 11 years she had

worked for 958 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 2004 the petitioner had

merely worked for 96 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 coworkers. All of these co-workers shown in Ex. PW1/C the year-wise

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

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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, 2004 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 1994 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/D21. 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/D21 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, 2004, 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

crossexamination 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

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

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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 2^nd 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 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

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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 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 2004 and the industrial dispute was raised after

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

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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 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 his services have been terminated in 1986 and he 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 of compensation 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 958 days as per

mandays chart on record and that the services of petitioner were disengaged in October, 2004 who

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worked as non skilled worker and had raised industrial dispute by issuance of demand notice after

about seven years i.e. demand notice was given on 05.7.2011. 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 lumpsum 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. Similar view was reiterated by the Hon’ble Apex Court in judgment titled as Vice

Chancellor, Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare &

another reported in AIR 2015 SC 3473.

21. In view of foregoing discussion, a lump-sum compensation of Rs.80,000/- (Rupees

eighty thousand 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. 1,2 and 4

are answered accordingly.

ISSUE NO.3

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.80,000/- (Rupees eighty thousand 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.

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 17th day of February, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT CHAMBA)

Ref No. : 107/2015

Date of Institution : 09.03.2015

Date of Decision : 17.02.2016

Smt. Hari w/o Shri Sri Ram, r/o V.P.O. Kumar, Tehsil Pangi, District Chamba, H.P.

. .Petitioner.

Versus

The 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.

AWARD

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

adjudication:

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

V.P.O. Kumar, 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

18-09-2011 regarding her alleged illegal termination of service during June, 2003 suffers

from delay and latches? If not, Whether termination of the services of Smt. Hari W/O Shri

Sri Ram, R/O V.P.O. Kumar, Tehsil Pangi, District Chamba, H.P. during June, 2003 by the

Executive Engineer, H.P.P.W.D. Division, Killar, Tehsil Pangi, District Chamba, 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 has filed statement of claim.

3. 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 May, 1994 who continuously worked till June, 2003 in IPH Sub Division, Killar.

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

DisputesAct, 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

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terminated/disengaged petitioner from daily wage service in the end of June, 2003 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 June, 2003

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 June, 2003 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 June, 2003. She further prayed for

reinstatement in service w.e.f. month of June, 2003 along-with back wages, seniority including

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

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

and again during entire service of petitioner between May, 1994 to June, 2003 be counted 160 days

continuous service and regularization of the service of petitioner w.e.f. 01.01.2002 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.

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 1994 who remained engaged till 2003