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fgekpy izns'k ljdkj

INDUSTRIES DEPARTMENT

NOTIFICATION

Shimla-2, the 02^nd May, 2016

No. Ind-A(F)17-3/2009-loose.—The Governor, Himachal Pradesh is pleased extend the

validity period of the State Level Advisory Board for the development of MSME, constituted vide

this department Notification No.Ind-A(F)17-3/2009 dated 05-06-2013, upto 31-03-2017.

By order,

Sd/-

Pr. Secretary(Inds.).

27&jkti=@2016&05&05&2016 ¼625½

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HIGHER EDUCATION DEPARTMENT

NOTIFICATION

Shimla-02, the 2^nd May, 2016

No. EDN-A-Ka (1)-15/2013.—The Governor, Himachal Pradesh is pleased to order to take

over the services of following Assistant Professors in different subjects of erstwhile Pt. Anant

Ram Degree College, Baroh, Distt. Kangra, H.P. on contract basis subject to the terms and

conditions as indicated in the notification.

The Governor, Himachal Pradesh is further pleased to post them on their fresh appointment

as Assistant Professor (College Cadre) on contract basis at the place shown against their

name(s):—

Sr.No. Name

Father,s Name

Designation

Place of posting

Sh. Rakesh Kumar

Sh. Ishwar Dass

Physics

Govt. College, Baroh.

Smt. Poonam Sharma

Sh. Satish Kumar

History

Govt. College, Baroh.

Sh. Aman Walia

Sh. Surinder Kumar

English

Govt. College, Sangrah

(Sirmour).

Sunita Devi

Sh. Om Prakash

English

Govt. College, Baroh.

Terms and conditions:—

The Assistant Professor (College Cadre) in the Department of Higher Education, H.P.

will be engaged on contract basis initially for one year, which may be extendable

on year to year basis. The date of joining will be considered for counting of service for

annual increase etc.

The Assistant Professor (College Cadre) appointed on contract basis will be paid

consolidated fixed contractual amount @ Rs. 21,600 P.M. (Rs. Twenty one thousand

and six hundred only) (which shall be equal to initial of the pay band + Grade

Pay). An amount of Rs. 648/- as annual increase in contractual emoluments for the

subsequent years will be allowed if contract is extended beyond one year and no

other allied benefits such as senior/selection scales etc. shall be given.

The Addl. Chief Secretary/Principal Secretary/Secretary (Hr. Education) to the

Government of Himachal Pradesh will be appointing and disciplinary authority.

He / she will not be governed by the rules, regulations and orders in force from

time to time as applicable to other government servants such as CCS (CCA) Rules,

1965 and CCS (Conduct) Rules, 1964 as are applicable in Himachal Pradesh.

Before submitting the report to the Government the contract appointee shall sign an

agreement as per Annexure –A.

The service of the Contract Appointee will be purely on temporary basis. The

appointment is liable to be terminated in case the performance/conduct of the contract

appointee is not found satisfactory.

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During the contract service, no advance will be given to him/her.

Contractual Appointee Assistant Professor (Colleges) will be entitled for one day’s

casual leave after putting in one month service. However, the contract employees will

also be entitled for 12 weeks Maternity Leave and 10 day’s Medical Leave. He/She

shall not be entitled for Medical Re-imbursement and LTC etc. No Leave of any

other kind except above is admissible to the contractual appointee. Provided that

the un-availed Casual Leave and Medical Leave can be accumulated upto the

calendar Year and will not be carried forwarded for the next calendar Year.

Unauthorized absence from the duty without the approval of the Controlling Officer

shall automatically lead to the termination from the contract. Contract Appointee

shall not be entitled for contractual amount for the period of absence from duty.

10. Transfer of a contract appointee will be permitted from one place to another after

putting three years of service at one place.

11. Selected candidate will have to submit a certificate of his/her fitness from Medical

Board, DDU Hospital, Shimla-1. Woman candidate pregnant beyond 12 weeks will

stand temporarily unfit till the confinement is over. The woman candidate will be re-

examined for the fitness.

12. Contract appointee will be entitled to TA/DA if required to go on tour in

connection with his/her official duties at the same rate as applicable to regular

officials at the minimum of pay scale.

13. The candidate engaged on contract basis under these Rules shall have no right to

claim for regularization/ permanent absorption as Assistant Professor (College cadre)

in the Department at any stage.

14. The appointment is provisional and is subject to the educational qualification and other

certificates being verified through proper channels and if the verification reveals that

the claim to belong to reserve categories, as the case may be is false, the services will

be terminated forthwith without assigning any further reasons and without prejudice

to such further action as may be taken under the provisions of the Indian Penal

Code for production of false certificate.

15. He/She will have to give a declaration to the effect that he/she has only one living

spouse, if married.

16. He/She will have to take an oath of allegiance/ faithfulness to the Constitution of

India or making a solemn affirmation.

17. He/She will have to produce all the certificates in original at the time of joining

this appointment.

If, the above terms and conditions are acceptable to him/her, should report for duty within

a week from the issue of this Notification in the Government College mentioned against his/her

name, failing which this offer of appointment shall stand cancelled and no further

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correspondence shall be entertained in this behalf. No Travelling allowance will be allowed to

join the contract appointment.

By order,

(P. C. DHIMAN),

Addl. Chief Secretary (Hr.Edu.).

_____________

No.EDN-A-Ka(1)15 /2013

Dated:Shimla-02, 2nd May, 2016.

Copy for information and necessary action to :—

The Director Higher Education, HP Shimla-01 with the direction to maintain the

personal files of the newly contract appointee i.e. Assistant Professor and keep all the

record of individual concerned. The DHE may also ensure that the newly contract

appointee fulfill all the requisite educational qualification and other criteria required

under the R & P Rules of the Assistant Professor (College Cadre).

2. The Principal, Government College concerned with the direction to submit the DOB

certificates, medical fitness certificate and other certificates / credentials of the

incumbent(s) to the Director of Higher Education after verifying the photocopies from

the original certificates. He/She should also be administered oath as mentioned in Para

15, 16 and certificate to this effect be also sent to the Director of Higher Education.

The Principal should accept joining as per the above Terms & Conditions including

after production of Medical Fitness Certificate, Agreement duly signed by the

candidate on Judicial Paper and completing all codal formalities.

3. The Secretary, H.P. Public Service Commission, Shimla-2.

4. The Under Secretary (Edu.-D) to the Govt. of Himachal Pradesh.

5. The Chief Medical Officer, DDU Hospital, Shimla-1 with the request to send the

medical fitness report / certificate to the Director of Higher Education, Himachal

Pradesh, Shimla-1.

6. The individual concerned (By name by Speed/registered post).

7. Guard file.

(PUSHPA CHAUDHARY),

Joint Secretary (Hr.Edu.) to the

Government of Himachal Pradesh.

____________

ANNEXURE –A

Form of contract/agreement to be executed between the _________________ (Name of the

post) and the Government of Himachal Pradesh through _________________ (Designation of

the Appointing Authority).

This agreement is made on this ____________________day of_______________in the

year_________________________Between Sh./Smt. ______________________________S/o/D/o

Shri______________R/o_________________________

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Contract appointee (hereinafter called the FIRST PARTY), AND the Governor of

Himachal Pradesh through____________________ (Designation of the Appointing Authority)

Himachal Pradesh (here-in-after the SECOND PARY).

Whereas, the SECOND PARTY has engaged the aforesaid FIRST PARTY and the

FIRST PARTY has agreed to serve as a Assistant Professor (College Cadre) on contract basis on the

following terms & conditions:—

That the FIRST PARTY shall remain in the service of the SECOND PARTY as

an Assistant Professor (College Cadre) for a period of 1 year commencing on day

of _____________ and ending on the day of ____________ It is specifically

mentioned and agreed upon by both the parties that the contract of the FIRST PARTY

with SECOND PARTY shall ipso-facto stand terminated on the last

working day i.e. on______________And information notice shall not be necessary.

Provided that for-further extension/renewal of contract period the HOD shall issue a

certificate that the service and conduct of the contract appointee was satisfactory

during the year and only then the period of contract is to be renewed / extended.

The contractual amount of the FIRST PARTY will be Rs. 21, 600/- per month.

The service of FIRST PARTY will be purely on temporary basis. The appointment is

liable to be terminated in case the performance/conduct of the contract appointee is not

found good or if a regular incumbent is appointed / posted against the vacancy for

which the first party was engaged on contract.

Contractual appointee i.e. Assistant Professor(Colleges) will be entitled for one day

casual leave after putting in one month service. However, the Contract employee

will also be entitled for 12 weeks Maternity Leave and 10 day’s Medical Leave. She

shall not be entitled for Medical re-imbursement and LTC etc. No leave of any other

kind except above is admissible to the contractual appointee. Provided that the un

availed Casual Leave and Medical Leave can be accumulated upto the calendar Year

and will not be carried forward for the next calendar Year.

Unauthorized absence from the duty without the approval of the Controlling Officer

shall automatically lead to the termination of the contract. A contractual appointee will

not be entitled for contractual amount for the period of absence from duty.

An official appointed on contract basis who have completed three years tenure at

one place of posting will be eligible for transfer on need based basis wherever

required on administrative grounds.

Selected candidate will have to submit a certificate of her fitness from a

Government/Registered Medical Practitioner. In case of women candidates

pregnancy beyond twelve weeks will render her temporarily unfit till the confinement

is over. The women candidate should be re-examined for fitness from an authorized

Medical Officer/Practitioner.

Contract appointee shall be entitled to TA/DA if required to go on tour in connection

with his/her official duties at the same rate as applicable to regular counter-part

official at the minimum of pay scale.

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The Employees Group Insurance Scheme as well as EPF/GPF will not be applicable

to contractual appointee(s).

IN WITNESS the FIRST PARTY AND SECOND PARTY have herein to set their hands

the day, month and year first, above written.

IN THE PRESENCE OF WITNESS:

_____________________

(Name and Full Address)

(Signature of the SECOND PARTY)

______________________

(Name and Full Address)

IN THE PRESENCE OF WITNESS:

_____________________

(Name and Full Address)

(Signature of the FIRST PARTY)

_____________________

(Name and Full Address)

____________

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 25^th April, 2016

No: Shram (A) 6-1/2016 (Awards).—In exercise of the powers vested under section

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

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

Shimla on the website of the Department of Labour & Employment Government of Himachal

Pradesh:—

Sr.

No.

Case No.

Title of the Case

Date of

Award

1. 77/2015

Sh. Amit Sharma V/s M/s C&E Ltd. Baddi.

03-03-2016

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2. 31/2014

Smt. Nirmla Devi V/S Raja Forgings & Gear Ltd.

11-03-2016

3. 32/2014

Sh. Rajinder Kumar V/S –do-

11-03-2016

4. 39/2014

Smt Jaswinder Kaur V/S –do-

11-03-2016

5. 40/2014

Sh. Guman Singh V/S -do-

11-03-2016

6. 26/2011

Sh. Anil Kumar V/S M.D. H.P. Financial Corp. Shimla.

15-03-2016

7. 64/2014

Sh Jiya Lal V/S President School Management

Committee & Others.

22-03-2016

8. 98/2010

Sh. Rangila Ram V/S M/S Perfect Security Panchkula &

Others.

22-03-2016

9. 55/2015

Sh. Ram Gopal V/S HPPWD.

22-03-2016

10. 60/2012

Sh. Ram Singh Mehta V/S Z plus Security & Others.

28-03-2016

11. 42/2011

Smt. Seema V/S Sanitation Promotion & Others.

30-03-2016

12. 43/2011

Sh. Manoj V/S -do-

30-03-2016

13. 44/2011

Smt. Nirmala V/S -do-

30-03-2016

14. 45/2011

Smt. Zeerina V/S -do-

30-03-2016

15. 46/2011

Smt. Bimbla V/s Sanitation Promotion & Others.

30-03-2016

16. 47/2011

Sh. Satinder V/S -do-

30-03-2016

17. 51/2011

Sh. Palak Ram V/S -do-

30-03-2016

18. 29/2014

Smt. Santresh V/S -do-

30-03-2016

19. 59/2015

Sh. Ramesh Kumar V/S M/S Wipro Enterprises Ltd.

31-03-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

__________

3.3.2016.

Present: None for the petitioner.

Shri Alok Bhardwaj, Advocate has appeared on behalf of the respondent and filed

memo of appearance.

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Case called twice but none appeared on behalf of the petitioner. It is 10:50 AM. Be

called again.

(Sushil Kukreja)

Presiding Judge,

Labour Court, Shimla.

Case called again

Present: None for the petitioner.

Shri Alok Bhardwaj, Advocate for respondent.

It is 12:55 PM case called again but none appeared on behalf of the petitioner. Be

called after lunch.

(Sushil Kukreja)

Presiding Judge,

Labour Court, Shimla.

Case called after lunch

Present: None for the petitioner.

Shri Alok Bhardwaj, Advocate for respondent.

It is 3:05 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner despite the fact that he has been duly served for today as per the AD

received back. Since, the petitioner has failed to appear before this Court despite having been duly

served and to file claim petition which shows that he is not interested to pursue his claim arising out

of the reference which has been sent by the appropriate government to this Court for adjudication,

hence, this Court is left with no other alternative but to decide the reference on the basis of material

whatsoever is available on file. The reference sent by the appropriate government for adjudication

is as under:

“Whether termination of Shri Amit Sharma S/o Shri H.R Sharma Village Daryota,

P.O Bhira, Tehsil & District Hamirpur HP by Employer/Management of M/s C& E

Ltd., Chemical Division (unit-II) Village Judikalan, adjoining plot no. 69B Industrial

Area Baddi District Solan, HP on account of resignation which has been alleged to be

taken by the management under duress from above ex- worker, is legal and justified?

If not, to what relief of reinstatement, back-wages, compensation and other service

benefits

the

above

aggrieved

workman

entitled

from

the

above

employer/management?”

In the absence of any claim petition and evidence on behalf of petitioner, it cannot be held

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

answered against the petitioner and the award is passed accordingly. Let a copy of this award be

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

consigned to records.

Announced:

(Sushil Kukreja)

3.3.2016.

Presiding Judge,

Labour Court, Shimla.

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11.3.2016.

Present:

Shri NiranjanVerma, Advocate for petitioner.

None for respondent.

Today, also correct address of respondent has not been filed. The record reveals that the

respondent is not being served as the petitioner has failed to file correct address of the respondent

despite repeated opportunities. The learned counsel for the petitioner today stated at bar that the

correct address of the respondent is not available and cannot be served. Therefore, it will be a futile

exercise to keep the reference pending particularly in view of the fact that the correct address of the

respondent is not available and is notbeing served. Hence, this Court is left with no other alternative

but to decide the reference on the basis of material whatsoever is available on the file. The

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

“Whether termination of services lf Smt. Nirmala Devi W/o Shri Soma Singh C/o Shri

Joginder Singh Village Sandholi, P.O HaripurSandhol, Tehsil Baddi, District Solan

HP by the Managing Director M/s Raja Forging & Gears Ltd., Sai Road Baddi

District Solan, HP w.e.f. 1.3.2013 without following 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 Ex- worker is entitled to from the

above employer?”

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

hertermination of services by the respondent w.e.f. 1.3.2013 to be illegal and unjustified but the

petitioner has failed to file the correct address of the respondent.Moreover, the petitioner has also

failed to file any claim petition and to lead evidence which could go to show that she was illegally

terminated by the respondent. Hence, in the absence of any claim petition/ evidence on record, the

reference is answered against the petitioner. However, the liberty is granted to the petitioner to

agitate her termination of service, as and when the correct address of the respondent becomes

available with her, by moving an application before this Court in order to revive the reference. Let

a copy of this order/award be sent to the appropriate government for publication in the official

gazette. File, after completion, be consigned to records.

Announced:

11.3.2016.

(Sushil Kukreja)

Presiding Judge

Labour Court, Shimla.

__________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL

TRIBUNAL- CUM-LABOUR COURT, SHIMLA.

App. No. 13 of 2011.

Instituted on.21.6.2011.

Decided on. 31.3.2016.

Rajinder Kumar S/o Shri Janki Ram R/o Village Kasar, Tehsil Pachhad, District Sirmour,

HP.

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VS.

Petitioner.

•

HP State Marketing Board, Khalini Shimla-2 through its Secretary.

•

Market Committee Shimla and Kinnaur Regulated Market Complex, Dhallkli Shimla- 12,

through its Secretary.

Respondents.

Petition under the Industrial Disputes Act, seeking declaratory relief.

For petitioner :

Shri Peeyush Verma, Advocate.

For respondent no.1 :

Ex-parte.

For respondent no.2 : Navlesh Verma, Advocate.

ORDER/AWARD

Briefly, the case of the petitioner is that he was engaged as clerk by the HP State Marketing

Board in September, 1995 and worked as such till September, 2004, when his services had orally

been terminated without due compliance of any provision of the Industrial Disputes Act, 1947

(hereinafter referred as to Act) despite the fact that the petitioner had been preforming his duties

with zeal and devotion to the best of his capabilities and to the entire satisfaction of his superiors. It

is further stated that the petitioner had completed 240 days in each calendar year and there was no

complaint against him and even after the retrenchment of the petitioner, the respondents retained

and employed the persons junior to him. It is also stated that the petitioner was falsely implicated in

a criminal case at the instance of certain persons, though he was honorably acquitted by the Ld.

JMIC in the false case and thereafter the petitioner approached the respondents with the written

request for his re-engagement but of no avail. The petitioner had preferred a demand notice to the

respondents which was taken up by the Labour-cum-Conciliation Officer Shimla for conciliation

between the parties but the conciliation failed and the matter kept for reference to this Tribunal and

a period of more than three months has expired from 16.8.2010 when the petitioner had preferred

the demand notice. Against this back-drop, a prayer has been made for re-instatement with seniority

and continuity along-with back- wages.

Respondent no.1 has not filed any reply and vide separate statement of Shri Sanjeev

Sharma, Advocate, respondent no.1 has adopted the reply filed on behalf of respondent no.2.

However, on 15.1.2014, the respondent no.1 was proceeded against ex-parte.

Respondent no.2 filed detailed reply wherein preliminary objections qua

maintainability, time barred, estoppel, petition is bad for mis-joinder of parties and the petitioner

has not approached this Court with clean hands. On merits, it has been asserted that the petitioner

was engaged on daily wage basis by the committee to meet its exigency of services and avowed

objects specified under the special Act of which it is a creation. It is denied that the petitioner was

performing his duties with zeal and devotions to the best of his capability and to the entire

satisfaction of his superiors and that he had completed 240 days in each calendar year. It is asserted

that the petitioner had left the job on his own without seeking permission form the competent

authority. It is further asserted that while the petitioner was serving as daily waged worker he was

deputed at Check Post Neri Pul to collect levy as per the provisions of the Act ibid, it was

discovered by the flying squad consisting of Chairman, Vice Chairman, Secretary of the Committee

on checking that the petitioner was absent from duty on 6.9.2004 without any intimation and due to

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his absence many trucks crossed the barrier/check post without payment of due market fees viz @

1% of the total price of the produce/goods. It is also asserted that few days earlier a FIR bearing no.

66/2004 at Police Station Rajgarh under sections 420, 409, 465, 471, 468 and 120-B of IPC had

been registered against the petitioner on the ground that the petitioner while performing his duties

at the Check Post Neri Pul, had been cheating, misappropriating the government money for his

personal use by forging documents, receipts etc. and after facing trial, he was acquitted by giving

benefit of doubt. It is denied that the service record of the petitioner was excellent. It is further

stated that there is no work available for the petitioner as new recruitments had been made to meet

the exigency of the work. The respondent no.2 prayed for the dismissal of the claim petition.

By filing rejoinder, the petitioner has reiterated his allegations by denying those of the

respondents.

Pleadings of the parties gave rise to the following issues which were struck on

22.6.2013.

•

Whether the services of the petitioner were illegally and arbitrarily terminated in the

month of September, 2004 as alleged?

OPP……….

•

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

to?

OPP……..

•

Whether this petition is not maintainable as alleged?

OPR……….

•

Whether this petition is time barred?

OPR………..

•

Whether the petitioner is estopped from filing this petition as alleged?

OPR………….

•

Whether this petition is bad for misjoinder and nonjoinder of necessary parties as

alleged?

OPR…….

•

Relief.

I have heard the learned Counsel for the petitioner and respondent no.2 and have also

gone through the record of the case carefully.

For the reasons to be recorded hereinafter while discussing issues for

determination my findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement with seniority and continuity w.e.f

11.8.2010 but without back wages.

Issue no.3 No.

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Issue no.4 No.

Issue no.5 No.

Issue no.6 No.

Relief. Reference answered in favour of the petitioner and against

respondents per operative part of award.

Reasons for findings

Issue no.1

Ld. Counsel for petitioner contended that the petitioner had worked continuously with

the respondent from Sept., 1995 till September, 2004 and completed 240 days in each calendar year

but his services had been orally terminated by the respondent without following any provision of

the Act and further that juniors to him were retained by the respondents. He further contended that

consequent upon the judgment Ex. PW-1/A, passed by Ld. JMIC Rajgarh on 28.1.2010, the

petitioner was acquitted of the offences punishable under section 420, 409, 465, 471, 468 and 120-

B of IPC, the petitioner requested the respondents vide Ex. PW-1/C for his re-engagement but of no

avail. Since, the services of the petitioner were terminated in utter violation of the provisions of the

Act, he deserves to be reinstated alongwith all the consequential benefits including back wages.

10 On the contrary, learned counsel for respondent no.2 contended that the services of the

petitioner had been engaged on daily wages basis to collect the market fee at the Check Post at Neri

Pul and on 4th September, 2004, a flying squad consisting of Chairman, Vice Chairman and

Secretary visited Neripul and found the petitioner absent from his duty and on enquiry it was

revealed that from 2.9.2004, nobody was present at check post and an FIR was lodged against the

petitioner and Police seized the record and due to absence of the petitioner the respondents suffered

huge loss on account of non-collection of the due market fee at the check post. He further

contended that thereafter the petitioner had not turned up for his duties and abandoned the job at his

own and the respondents deployed other staff at the check post.

11 While appearing in the witness box as PW-1, the petitioner has deposed that he was

engaged as daily wages clerk by the Committee in August, 1995 and remained posted at Market

Committee Neri Pul Check Post till September, 2004 and then his services had been terminated by

the respondent verbally without any reason by telling that since a case had been registered against

him, his services were being terminated. He had worked round the clock even on Sundays and

Holidays but his presence was not marked. No notice and compensation had been paid to him at the

time of his termination. Neither show cause notice had been issued to him nor any enquiry was

held. The case against him was decided by the JMIC Rajgarh, wherein he was acquitted vide

judgment Ex. PW-1/A. Thereafter, he approached the respondents for his reinstatement vide Ex.

PW-1/C and the reply filed by the respondents is Ex. PW-1/D and after 90 days he again

approached the respondents for his reengagement but he was told vide letters Ex. PW-1/E and Ex.

PW-1/F that his services could not be re-engaged as the then Chairman had engaged him without

sanction in the year, 1995. He is unemployed after his retrenchment. In cross-examination, he

stated that he has not brought any appointment letter and no agreement of appointment or contract

of appointment was got signed between the parties. He remained at home only w.e.f. 2.9.2004 till

2010 and during this period, he was visiting the office of respondent at Shimla two or three times in

a month. He denied that he had not given any representation/letter for his re-engagement. He

admitted that in the criminal case, registered against him, he remained in custody for about 12 to 15

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days. He denied that the respondents were engaging his services from time to time at different

places. He further denied that after 2.9.2004, he on his own had not performed his duties.

12 On the contrary, respondent no.2 examined one Shri Bhagat Ram Garg, Assistant

Secretary, who has stated that the petitioner was engaged by respondent no.2 on daily wage basis to

collect the market fee at the check post at Neri Pul and on 4th September, 2004 a flying squad

consisting of Chairman, Vice Chairman and he himself visited Neri Pul and found the petitioner

absent from his duty. On enquiry, it was revealed that from 2.9.2004 nobody was present at check

post Neri Pul and FIR was lodged against the petitioner and Police had seized the record. He further

stated that due to absence of the petitioner from duty, the Market Committee had suffered huge loss

on account of non-collection of the due market fee at the check post. Thereafter, the petitioner

never turned up for duty and the Committee deployed other staff at the check post Neri Pul. In

cross-examination, he admitted that the petitioner was engaged as clerk in September 1995 and he

had worked till September, 2004 continuously. He denied that the Police had immediately informed

the respondents about the lodging of the FIR. He admitted that no notice and chargesheet was

issued and no enquiry was conducted against the petitioner. He denied that after release on bail, the

petitioner visited the respondents to join his duties but he was not allowed to join. He admitted that

the petitioner was acquitted by the Court on 28.1.2010. He further admitted that the petitioner had

written a letter Ex. PW-1/C for joining with the respondents and thereafter respondent no.2 issued a

letter Ex. PW-1/D to the petitioner and also wrote letters Ex. PW-1/E and Ex. PW-1/F to the

respondent no.1. He also admitted that the issue of resumption of duties by the petitioner has still

not been decided.

13 I have considered the respective contention of learned counsel for petitioner and

respondent no 2 and had also scrutinized the record of the case minutely.

14 After the closer scrutiny of the record of the case, it has become clear that the services

of the petitioner had been engaged by the respondent no.2 as daily wages clerk in the month of

September 1995 and he worked as such till September, 2004 continuously. It is an admitted fact

that on 2.9.2004, FIR was lodged against the petitioner under sections 420, 409, 465, 471, 468 and

120-B of IPC and after facing trial the petitioner was acquitted by the learned JMIC Rajgarh vide

judgment Ex. PW-1/A. It is also an admitted fact that after acquittal, the petitioner represented the

respondents for his re-instatement and submitted his joining report/letter Ex. PW-1/C which was

duly replied by the respondents vide letter Ex. PW-1/D but the services of the petitioner had not

been engaged. The only stand which has been taken by the respondents is to the effect that the

petitioner was engaged on daily wages basis to collect the market fee at the Check Post at Neri Pul

and on 4th September, 2004, a flying squad consisting of Chairman, Vice Chairman and Secretary

visited Neripul and found the petitioner absent from his duty and on enquiry it was revealed that

from 2.9.2004, nobody was present at check post and thereafter the petitioner never turned up for

duty and the respondents deployed other staff at the check post. It has been admitted by RW-1 Shri

Bhagat Ram in his cross-examination that no notice and chargesheet was issued and no enquiry was

conducted against the petitioner. Since, the petitioner had been in continuous service of the

respondents from the year, 1995 till September 2004, his services could not have been terminated

without complying with the provisions of the Act. It is settled legal proposition that a workman,

against whom misconduct is alleged, cannot be dismissed or discharged unless a proper domestic

enquiry is held against him in respect of the alleged misconduct. Even, if the alleged misconduct is

proved against the workman, he cannot be dis-charged or dismissed from service unless he has

been afforded reasonable opportunity of being heard before initiating any action against him by the

employer/respondent. Since, the petitioner had completed 240 days in twelve calendar months

preceding his termination, a reasonable opportunity of being heard should have been afforded to

him and proper enquiry should have been held before terminating his services. In D. K Yadav Vs.

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M/s J.M A Industries Ltd. as reported in 1993-1 Supreme Court Service Law Judgments -221,

the Hon’ble Apex Court has held as under:

“Reasonable opportunity be given to the employee concerned to put forth his case and

proper enquiry be held before terminating his service.”

In a recent judgment of our Hon’ble High Court in ILR-XLV (VI) 938 titled as

Gurcharan Singh Deceased through his LR’s Vs. State of HP and ors. the workman was

arrested and was convicted of the offence punishable under section 324 of the IPC and he was

terminated without conducting any enquiry. The Hon’ble High Court has held that his termination

could not have been ordered without conducting any enquiry as the workman had completed 240

days and was therefore entitled to the enquiry. The relevant portion of the aforesaid judgment reads

as under:

“8. The moot question is whether termination can be ordered without conducting any

inquiry? The answer is in the negative for the following reasons:

9……………………………………..

10. While going through the impugned award and the writ petition, one comes to an

inescapable conclusion that the termination of deceased Gurcharan Singh was made

without following the mandate of law.

11……………………………………..

12…………………………………….

13. In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar

year, as discussed and held by the Labour Court, after scanning the evidence, the

inquiry was required, not to speak of only issuance of the notice.

In the instant case, admittedly, the petitioner had worked with the respondents from the

year, 1995 to 2.9.2004 continuously which fact is also clear from the cross-examination of RW-1

wherein he has admitted that the petitioner had worked continuously from the year 1995 till

September, 2004 meaning thereby the petitioner had completed 240 working days in twelve

calendar months preceding his termination. However, the petitioner was never asked to answer any

charges as no chargesheet was issued to him and no enquiry was held before terminating his

services, on the basis of the alleged misconduct. Moreover, the petitioner was acquitted by the

learned JMIC Rajgarh vide judgment Ex. PW-1/A and thereafter he approached the respondents for

his reinstatement but of no avail. Hence, the termination of the services of the petitioner without

conducting any enquiry and without affording reasonable opportunity of being heard to the

petitioner is in utter violation of the principles of natural justice. Therefore, before terminating the

services of the petitioner, it was incumbent upon the respondents to have complied with the

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

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

as per clauses (a) to (c) which are mandatory in nature. It has been held by our own Hon’ble High

Court in Latest HLJ 2007 (HP) 776 titled as State of Himachal Pradesh Vs. Sohan Lal that the

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

retrenchment during twelve calendar months and not a year. The relevant extract of the aforesaid

judgment is reproduced as under:

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

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

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

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

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

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

retrenchment during 12 calendar months and not a year.”

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

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

services of an employee by way of retrenchment without complying with the provisions of section

25-F of the Act is a nullity. The relevant extract of aforesaid judgment is reproduced as under:

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

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

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

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

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

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

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

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

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

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

and

non-compliance

thereof

renders

the

retrenchment

employee

nullity……………..”

(2) Therefore, in view of my aforesaid discussion, as it is clear that the petitioner had

worked for more than 240 days in twelve calendar months preceding his termination, the

respondents were under the legal obligation to comply with the provisions of the section 25-F of the

Industrial Disputes Act before terminating his services. But, no such compliance was made by the

respondents, hence, there is violation of section 25-F of the Act, on the part of respondents. As a

result, the termination of petitioner from September, 2004 is not sustainable in the eyes of law and

is hereby set aside.

(3) The learned counsel for the petitioner next contended that the respondents have

violated the provisions of section 25-G and 25-H of the Act as after the termination of the services

of the petitioner, the respondents have engaged/retained the juniors to the petitioner. RW-1 Shri

Bhagat Ram has stated on oath that the petitioner never turned up for duty and the committee

deployed other staff at the Check Post, Neri Pul. Thus, it has been proved on record that the

respondents have engaged persons junior to him and no notice had been issued to the petitioner

before terminating his services. In 2007 LLR 72, State of Haryana Vs. Dilbagh Singh, it has

been held by the Hon’ble Apex Court that where persons junior to a workman were, still working

with management, termination of services of workman being in violation of sections 25-G and 25-

H of the Industrial Disputes Act providing for procedure for retrenchment and re-employment of

retrenched workers will not be valid and legal.

(4) In the present case also, the petitioner has duly proved that after the termination of his

services, juniors have been engaged/retained by the respondent whereas no notice was given to the

petitioner by the respondents at any point of time calling upon him for his re- employment before

the engagement of his juniors and as such the termination of services of the petitioner by the

respondents in violation of the provisions of sections 25-G and 25-H of the Act is improper and

unjustified as the respondents have violated the principle of “first come, last go”.

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(5) Thus, having regard to the entire evidence on record, I have no hesitation in holding

that the services of the petitioner were illegally and arbitrarily terminated by the respondents in the

month of September, 2004. Accordingly, this issue is decided in favour of petitioner and against

respondents.

Issue no.2

(6) Since I have held under issues no.1 above that the termination of services of the

petitioner by the respondents without following the provisions of the Act is illegal and unjustified,

hence, the petitioner is ordered to be reinstated in service forth-with with seniority and continuity

w.e.f. 11.8.2010 when he raised the demand notice.

(7) Now, the question which arises for consideration, before this Court is as to whether the

petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In

(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the

Hon’ble Supreme Court has held that once the order of termination of services of an employee is

set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an

employee to get reinstated does not necessarily result in payment of full or partial back-wages,

which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in

2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be

granted mechanically, upon an order of termination be declared illegal. It is further held that

reinstatement must not be accompanied by payment of full back wages even for the period when

the workman remained out of service and contributed little or nothing to the Industry.

(8) Moreover, the petitioner was under an obligation to prove by leading cogent evidence

that he was not gainfully employed after the termination of his services. The initial burden is on the

workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex

Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan

and another Vs. S.C Sharma that :

“16…………..When, the question of determining the entitlement of a person to back-wages

is concerned, the employee has to show that he was not gainfully employed. The initial

burden is on him. After and if he places materials in that regard, the employer can bring on

record materials to rebut the claim…………..”

(9) In the present case, the petitioner has failed to discharge his burden by placing any

plausible

material

record

that

was

not

gainfully

employed

after

his

termination/disengagement. Except for his bald statement, there is nothing on record which could

go to show that after his termination, the petitioner was not gainfully employed. Therefore, in view

of the entire evidence, on record, coupled with the rulings (supra), I have no hesitation in holding

that the petitioner is not entitled to any back-wages. Accordingly, issue no.2 is partly decided in

favour of the petitioner and against the respondents.

Issue no.3.

(10) The onus to prove this issue was on the respondents. However, respondents had failed

to establish as to how the petition is not maintainable. It is not understandable as to how the petition

is not maintainable especially when the same has been filed by the petitioner pursuant to the

demand notice dated 11.8.2010. It has been specifically averred in the petition that the aforesaid

demand notice was taken up by the Labour-cum-Conciliation Officer, Shimla for conciliation

between the parties but the conciliation failed and the matter was kept for reference to this Court. It

has further been stated in the petition that since a period of more than three months has expired

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when the petitioner has preferred demand notice, the petitioner has filed this application directly

before this Court without further awaiting for reference for adjudication of the dispute by the

appropriate government. The aforesaid averments made by the petitioner have not been specifically

denied by the respondents. Therefore, it cannot be said that the petition is not maintainable.

Accordingly, issue no.3 is decided in favour of petitioner and against the respondents.

Issue no. 4

(11) The learned counsel for respondent no.2 contended that the petition filed by the

petitioner is time barred as he has raised the dispute after a gap of six years. However, the law on

the point is well settled that no limitation is prescribed either under the Industrial Disputes Act or

under the Limitation Act for raising the Industrial Dispute. The Hon’ble Supreme Court in its

various judgments has held that the relief under the Industrial Disputes Act cannot be denied to the

workman merely on the ground of delay. It has been held by the Hon’ble Supreme Court in in

(1999) 6 SCC 82, titled as Ajayab Singh Vs. Sirhind Co-operative Marketing –cum-

processing Service Society Limited and Another. that:-

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the

proceedings under the ID Act. The relief under the ID Act cannot be denied 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”

It has also been held by the Hon’ble Supreme Court in Gurmail Singh Vs. Principal

Government College of Education and others, (2009) 9 SCC 496 that mere delay in challenging

the termination would not be a bar to the adjudication of the matter but could only deprive the

appellant of his back wages for the period of delay in raising the termination issue.

(12) Therefore, the aforesaid law declared by the Hon’ble Supreme Court in various context

makes the legal position clear that there is no limitation prescribed either under the Industrial

Disputes Act or under the Limitation Act for raising the industrial dispute. The provision of Article

137 of the schedule to the Indian Limitation Act, 1963 is not applicable to the proceedings under

the Act and the relief under the Industrial Disputes Act cannot be denied to the workman merely on

the ground of delay. Accordingly, this issue is decided in favour of the petitioner and against the

respondents.

Issue no. 5 & 6.

(13) In support of these issues no evidence was led by the respondents. Moreover,

respondents had failed to prove as to how the petitioner is estopped from filing the present petition

and as to how the petition is bad for misjoinder and non-joinder of necessary parties. Accordingly,

these issues are decided in favour of petitioner and against the respondents.

Relief

As a sequel to my above discussion and findings on issues no.1 to 6, the claim of the

petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in

service forthwith with seniority and continuity w.e.f. 11.8.2010 when he raised the demand notice.

However the petitioner is not entitled to back wages. Let a copy of this award/order be sent to the

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

records. Announced in the open Court today on this 31st Day of March 2016.

(Praveen)

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla.

__________

23.2.2016.

Present: Shri Naveen Thakur, Advocate vice csl for petitioner.

None for respondents.

Again the correct address of respondents not filed. Further time prayed. In the interest of

justice one last opportunity is granted to the petitioner to file correct address of the respondent on

or before 11.3.2016.

11.3.2016.

(Sushil Kukreja)

Presiding Judge

Labour Court, Shimla.

_________

Present:

Shri NiranjanVerma, Advocate for petitioner.

None for respondent.

Today, also correct address of respondents has not been filed. The record reveals that the

respondents are not being served as the petitioner has failed to file correct address of the

respondents despite repeated opportunities. The learned counsel for the petitioner today stated at

bar that the correct address of the respondentsis not available and cannot be served. Therefore, it

will be a futile exercise to keep the reference pending particularly in view of the fact that the

correct address of the respondents is not available and arenot being served. Hence, this Court is left

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

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

adjudication:

“Whether termination of services of Smt. JaswinderKaur W/o late Shri Ranga

RamR/o Village Sandholi, P.O HaripurSandholi, Tehsil Baddi, District Solan HP w.e.f.

1.3.2013 by the employer /Managing Director (1) M/s Raja Forging & Gears Ltd., Sai

Road Baddi District Solan, HP (Gear Unit) (ii) M/s Raja Forging and Gear Ltd., SCO

860, Shivalik Enclave, Manimajra Chandigarh (Regd. and Corporate office)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 Ex-worker is entitled to from the above employer?”

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

hertermination of services by the respondentsw.e.f. 1.3.2013 to be illegal and unjustified but the

petitioner has failed to file the correct address of the respondents.Moreover, the petitioner has also

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failed to file any claim petition and to lead evidence which could go to show that she was illegally

terminated by the respondents. Hence, in the absence of any claim petition/ evidence on record, the

reference is answered against the petitioner. However, the liberty is granted to the petitioner to

agitate her termination of service, as and when the correct address of the respondents becomes

available with her, by moving an application before this Court in order to revive the reference. Let

a copy of this order/award be sent to the appropriate government for publication in the official

gazette. File, after completion, be consigned to records.

Announced:

11.3.2016.

(Sushil Kukreja),

Presiding Judge

Labour Court, Shimla.

___________

11.3.2016.

Present:

Shri NiranjanVerma, Advocate for petitioner.

None for respondent.

Today, also correct address of respondent has not been filed. The record reveals that the

respondent is not being served as the petitioner has failed to file correct address of the respondent

despite repeated opportunities. The learned counsel for the petitioner today stated at bar that the

correct address of the respondent is not available and cannot be served. Therefore, it will be a futile

exercise to keep the reference pending particularly in view of the fact that the correct address of the

respondent is not available and is not being served. Hence, this Court is left with no other

alternative but to decide the reference on the basis of material whatsoever is available on the file.

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

“Whether termination of services of Shri Gurnam SinghS/o Shri Dalel SinghR/o

Village Ram Nagar Kholi, P.O Nanakpur, Tehsil Kalka District Panchkula (HR) by

the Managing Director M/s Raja Forging & Gears Ltd., Sai Road Baddi District

Solan, HP w.e.f. 1.3.2013 without following 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 Ex-worker is entitled to from the above

employer?”

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

histermination of services by the respondent w.e.f. 1.3.2013 to be illegal and unjustified but the

petitioner has failed to file the correct address of the respondent.Moreover, the petitioner has also

failed to file any claim petition and to lead evidence which could go to show that he was illegally

terminated by the respondent. Hence, in the absence of any claim petition/ evidence on record, the

reference is answered against the petitioner. However, the liberty is granted to the petitioner to

agitate his termination of service, as and when the correct address of the respondent becomes

available with him, by moving an application before this Court in order to revive the reference. Let

a copy of this order/award be sent to the appropriate government for publication in the official

gazette. File, after completion, be consigned to records.

Announced:

11.3.2016.

(Sushil Kukreja),

Presiding Judge

Labour Court, Shimla.

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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUM- LABOUR COURT, SHIMLA, (H.P).

Reference No. 26 of 2011.

Instituted on. 13.6.2011.

Decided on 15.3.2016.

Anil Kumar S/o Shri Ami Chand Thakur R/o Village Chewla, P.O Rodi via Totu, Tehsil &

District Shimla, HP.

……………Petitioner.

Vs.

The Managing Director, HP Financial Corporation Shimla, HP.

……………Respondent.

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

For petitioner : Shri Sumit Raj, Advocate.

For respondent : Shri Jagat Singh Shyam, Advocate.

AWARD

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

“Whether verbal termination of the services of Shri Anil Kumar S/o Shri Ami Chand

Thakur, daily wage chowkidar by The Managing Director HP Financial Corporation,

Shimla w.e.f. 21.11.2006 without serving notice and without complying with the

provisions of the Industrial Disputes Act, 1947 as alleged by the workman is legal and

justified? If not, to what back-wages, service benefits and relief the above named daily

wage chowkidar is entitled to?”

(a) Briefly, the case of the petitioner is that he had been engaged as daily wages chowkidar

on 28.2.2006 by the respondent corporation for watch and ward at M/s S/L Industries Village

Kandisar, P.O Fagu, Tehsil Theog, District Shimla and on 2.11.2006, his services had been

terminated without following any proper procedure as contemplated under the Industrial Disputes

Act, 1947 (hereinafter referred to as Act). The petitioner had worked continuously for 287 days

without any break. It is further averred that the petitioner was forced to work on Sundays and other

gazetted holidays and continuously for 24 hours while wages were paid only for 8 working hours

@ ` 70/ per day and the numerous representation and requests of the petitioner for re-engagement

fell deaf to the ears of the respondent. It is also averred that the petitioner had competed 240 days

of continuous service in a calendar year preceding his retrenchment and after withdrawing the

services of the petitioner, the respondent had engaged Shri Roshan Lal on 4.12.2006, in violation of

section 25-H of the Act whereas no opportunity was given to the petitioner. Neither any notice

under section 25-F of the Act nor the retrenchment compensation had been given to the petitioner,

who is not employed in any service and is out of job since his illegal retrenchment. Against this

back-drop the petitioner has prayed for his re-instatement in service with seniority and continuity

along-with back-wages. The petitioner also prayed for payment of over-time.

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(b) The respondent contested the claim of the petitioner by filing reply wherein

preliminary objections have been taken that the petitioner was engaged as daily waged chowkidar

on contract basis for watch and ward of assets of the industrial unit taken over under section 29 of

the SFCs Act, 1951 by the respondent and as such the petitioner had to perform his duties for a

limited period and his engagement was co-terminus with the sale of the Industrial unit under

section 29 of the SFCs Act. Since, the unit was sold by the respondent, the services of petitioner

were automatically discontinued in view of the terms of conditions of contract and conveyed to him

verbally at the time of his engagement as daily waged chowkidar and written contract was agreed to

be executed by him later on but the petitioner refused to execute the agreement-cum-undertaking on

the prescribed proforma, hence, disengagement of the petitioner does not attract the definition of

retrenchment. It is also asserted that the respondent had no regular vacancy of chowkidar and there

is no industrial activity in the closed/sick units at the time of takeover of the assets by the

respondent. It is further asserted that the respondent has not framed any rules for engaging the

services of chowkidars in the taken over units and the wages to the petitioner were paid from the

loan account of concerned industrial concern. On merits, it has been asserted that the respondent

had sanctioned term loan of ` 6.08 lacs and soft loan of ` 2.34 lacs on 26.9.1997 for setting up an

industrial unit for mushroom compost and mushroom processing to M/s S.L Industries but the said

industrial concern committed persistent defaults in the repayment of outstanding loan dues and

consequently the respondent had taken over the assets and as such the petitioner was engaged as

daily waged chowkidar on 28.2.2006 for watch and ward of the taken over assets. It is further

asserted that at the time of engaging the petitioner, it was made clear that his services were being

engaged on purely temporary basis. The respondent had not violated any provision of law by

disengaging the petitioner. The respondent prayed for the dismissal of the claim petition.

following issues which were struck on 12.3.2012.

•

Whether the termination of the services of the petitioner by the respondent

w.e.f. 21.11.2006, is in violation of the provisions of Industrial Disputes Act, 1947?

OPP……..

•

If issue no.1 is proved in affirmative, to what relief, the petitioner is entitled to?

OPP…..

•

Whether there were no industrial activities in the closed units at the time of take-over

of the assets?

OPR……..

•

Relief.

(2) Besides having heard the Learned Counsels for the parties, I, have also gone through

the record of the case carefully.

(3) For the reasons to be recorded hereinafter while discussing issues for

determination, my findings on the aforesaid issues are as under:

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement with seniority and continuity but

without back-wages.

Issue no.3

Yes.

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Relief. Reference answered in favour of the petitioner and against the

respondent per operative part of award.

Reasons for findings

Issue no.1

(4) The learned counsel for the petitioner contended that the services of the petitioner have

been terminated by the respondent without complying with the mandatory provisions of the Act as

neither any notice was served upon him nor he was paid compensation. He further contended that

the petitioner had completed more than 240 days in one calendar year and juniors to him are still

working with the respondent and his services have been terminated without any reason and even no

opportunity of being heard was afforded to him before terminating his services. The learned

counsel also contended that the petitioner was forced to work on Sundays and other gazetted

holidays and that too for 24 hours whereas the wages were being paid to him only for 8 working

hours per day.

(5) On the other hand, learned counsel appearing on behalf of the respondent contended

that the petitioner had worked as daily waged chowkidar on contract basis for watch and ward of

assets of the industrial units taken over under section 29 of the SFCs Act and as such the

engagement of the petitioner was co-terminus with the sale of the industrial unit, hence, the

petitioner is not entitled for the protection of sections 25-F, 25-G and 25-H of the Act.

(6) To prove his case, the petitioner has appeared himself as PW-1 and stated that he had

been working as daily waged chowkidar w.e.f 28.2.2006. He was engaged for watch and ward of

industry at Theog and worked as such till 22.11.2006 continuously for 24 hours. He was working

day and night whereas the respondent was paying him ` 70/- per day for eight hours and no wages

for remaining 16 hours had been paid to him. When he demanded for the wages of 16 hours, he was

terminated from service without any notice. The respondent had engaged some other daily wagers

after his termination. He had worked for 24 hours per day continuously for 287 days. In cross-

examination, he admitted that he was engaged on daily wages only as chowkidar at the unit of S.L

industry. He denied that at the time of his engagement, it was made clear to him that his services

had been engaged only for S.L Industry or till the same was sold. He denied that he was called by

the respondent to execute an agreement and he refused to sign the same. He further denied that

when he had not signed the agreement, his services had been terminated by the respondent in

November, 2006. He admitted that after his termination one Shri Roshan Lal was engaged as

chowkidar. He denied that Roshan Lal and Diwan Singh were engaged on co-terminus basis. He

also denied that he had not worked for 287 days. He denied that he is working on daily wages basis

these days at some other place.

(7) To rebut the case of the petitioner, the respondent has examined one Shri R.P Sandhu,

Deputy Manager as RW-1, who has tendered his affidavit Ex. RW-1/A in examination-in- chief

wherein he reiterated almost all the averments as made in the reply. In cross-examination, he

admitted that the duty of the petitioner as chowkidar was for 24 hours and the petitioner has

discharged his duties continuously from 28.2.2006 till 22.11.2006. He further admitted that no

over-time charges have been paid to the petitioner and no written agreement was executed with him

(petitioner) regarding the contractual employment. He also admitted that no written letter was

issued to petitioner to call upon him to execute an agreement with the respondent and no notice was

issued to the petitioner before his termination. He admitted that after the disengagement of the

petitioner, two new persons were appointed as chowkidar and the respondent had engaged various

persons as daily wages chowkidars after the year, 2006 in the taken over units only.

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(8) I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof it has become clear that the petitioner had worked as daily waged chowkidar for watch and

ward of taken over assets with the respondent w.e.f. 28.2.2006 till 22.11.2006. It is also an admitted

fact that the petitioner had worked for 287 days continuously prior to his retrenchment. The case of

the respondent is to the effect that the services of the petitioner had been engaged for specific

period as chowkidar for watch and ward of taken over assets and his services were co-terminus

with the sale of taken over unit. However, no material has been produced on record that the

petitioner was engaged for specific period as chowkidar and his services were co-terminus with the

sale of taken-over unit. The further case of the respondent is to the effect that the petitioner had to

execute specific written contract with the respondent in the shape of agreement-cum-undertaking

and the petitioner had agreed to execute the same but when the respondent corporation called upon

the petitioner to execute the aforesaid agreement, he had failed to execute the same and as such the

respondent had dis-engaged his services. However, to this effect also no material has been

produced by the respondent corporation. Except for the bald statement of RW-1, there is no

evidence on record to suggest that the petitioner had been engaged for specific period on co-

terminus basis with the sale of taken-over unit and he had failed to execute an agreement with the

respondent corporation regarding the contractual employment. Rather, in cross-examination RW-1

Shri Ram Pal Sandhu, Deputy Manager, categorically admitted that the petitioner had discharged

his duties continuously w.e.f. 28.2.2006 till 22.11.2006. He further admitted that no written

agreement was executed with the petitioner regarding the contractual employment and that no letter

in writing was issued to the petitioner to call upon him to execute an agreement with the

corporation. The respondent has failed to prove on record that the services of the petitioner were

engaged for specific period on contract basis as no material in this regard was brought on record by

the respondent. Admittedly, neither any notice nor any letter was issued to the petitioner by the

respondent calling upon him to execute an agreement. In normal circumstances, the agreement is

executed with the person prior to or at the time of engagement of his services and not thereafter.

The respondent had failed to explain as to why the services of the petitioner were engaged before

executing the agreement as alleged by it. Therefore, in the absence of any evidence on record, it

cannot be believed that after the services of the petitioner were engaged, the respondent had called

upon him to execute the agreement regarding his contractual employment.

(9) It is an admitted fact that the petitioner had completed more than 240 days in a

calendar year preceding his termination. Therefore, before terminating the services of the

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

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

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

which are mandatory in nature. However, in the present case, the perusal of the record shows that

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

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

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

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

relevant extract of the aforesaid judgment is reproduced as under:

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

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

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

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

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

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

retrenchment during 12 calendar months and not a year.”

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

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

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

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

extract of aforesaid judgment is reproduced as under:

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

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

year under an employer can be retrenched by that employer until the conditions

enumerated in Clauses (a) and (b) of Section 25-F of the Act are satisfied. In

terms of Clause (a), the employer is required to give to the workman one month’s

notice in writing indicating the reasons for retrenchment or pay him wages in lieu

of the notice. Clause (b) casts a duty upon the employer to pay to the workman at

the time of retrenchment, compensation equivalent to fifteen days’ average pay

for every completed year of continuous service or any part thereof in excess of six

months.

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

mandatory and non-compliance thereof renders the retrenchment of an employee

nullity……………..”

(10) In the present case also before terminating the services of the petitioner, the respondent

had not complied with the conditions precedent to the retrenchment as per section 25-F of the Act

which are mandatory in law.

(11) The learned counsel of the petitioner next contended that at the time of the termination

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

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

principles of “last come first go”. It has been admitted by RW-1 Shri Ram Pal Sandhu, Deputy

Manager in his affidavit Ex. RW-1/A that the respondent had engaged the services of Roshan Lal

and Diwan Singh as daily wager chowkidar after the dis-engagement of the services of the

petitioner. In cross-examination he also admitted that after the disengagement of the petitioner two

new persons were engaged as chowkidars and the respondent had also engaged various persons as

daily rated chowkidars after the year 2006 in the taken over units. Thus, from the evidence, on

record, it has been proved that after the disengagement of the services of the petitioner, fresh

workers have been engaged without giving an opportunity to the petitioner for re-employment,

which is clear cut violation of section 25-H of the Act.

2- Thus, having regard to entire evidence on record and in view of above cited rulings and

my foregoing observations, I have no hesitation in holding that the termination/disengagement of

the services of the petitioner w.e.f. 21.11.2006, by the respondent without complying with the

provisions of the Act, is illegal and unjustified.

3- Consequently, the petitioner succeeds to prove this issue, to which my answer is in the

affirmative.

Issue no.2.

4- Since I have held under issue no.1 above that the termination of services of the

petitioner by the respondent without following the provisions of section 25-F of the Act is illegal

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

continuity.

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5- Now, the question which arises for consideration, before this Court is as to whether the