jkti=] fgekpy izns'k

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

cq/kokj] 22 twu] 2016@1 vk"kk<+ 1938

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, 16th May, 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:--

56&jkti=@2016&22&06&2016 ¼1581½

1582

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Sr. No.

Case No.

Title of the Case

Date of Award

1.

108/2010

Sh.

Happy

Thakur

V/s

M/s

Synergy

Tele

Communications (P) Ltd. Nalagarh.

07-04-2016

2.

109/2010

Sh. Vikram Singh V/s -do-

07-04-2016

3.

91/2010

Sh. Bag Singh V/s M/s S.M.Electronics, Parwanoo.

09-04-2016

4.

55/2013

Sh. Shyam Bihari V/S M/s Pyramid Electronics,

Nalagarh.

11-04-2016

5.

91/2013

Sh. Hussan Singh V/S Som Dutt Builder Pvt. Ltd.

11-04-2016

6.

06/2015

Sh. Ashok Kumar V/S Principal, Pt. Gauri Shankar

Memorial Polytechnic, Distt. Solan.

12-04-2016

7.

39/2013

Sh. Ratti Ram V/S DFO, Renuka Ji.

12-04-2016

8.

78/2014

Workers Union V/s M/s Sai Engineering Foundation,

Shimla.

18-04-2016

9.

38/2015

Sh. Vikas Thakur V/S The G.M. M/s Auro Dyeing

Baddi, Solan.

19-04-2016

10.

77/2013

Sh. Arun Kumar V/S Dr. Y.S. Parmar.

23-04-2016

11.

15/2011

Sh Ashwani Kumar V/S SCL

28-04-2016

12.

16/2011

Sh.Ashok Kumar V/s -do

28-04-2016

13.

17/2011

Sh. Sany Ram V/s – Sh. Pawan Nag V/s Soil

Conservation of Forest. do-

28-04-2016

14.

72/2009

29-04-2016

15.

36/2013

Sh. Ram Rattan V/S Geep Batteries India Ltd.

29-02-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

_________

7-4-2016

Present:

Shri J.C Bhardwaj, AR for petitioner.

Shri A.K Bakshi, Advocate for respondent.

At this stage, vide separate statements recorded today, it has been stated by Shri A.K

Bakshi, Advocate for respondent that the respondent management is ready to pay a sum of

` 1,00,000/- (` one lakh only) to the petitioner towards full & final settlement of the claim in

reference no. 108/2010 and the said amount shall be paid to the petitioner within a period of thirty

days from today, otherwise the same shall carry interest @ 9% per annum from the date of order till

1583

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

its realization. The petitioner has also accepted the amount offered by the respondent vide separate

statement.

From the perusal of the statement of the petitioner as well as the learned counsel for the

respondent, it is clear that the petitioner has settled the dispute with the respondent and agreed to

accept ` 1,00,000/- from the respondent in full & final settlement of the claim. Since, the matter has

been settled between the parties amicably as such the reference is ordered to be answered

accordingly and the award is passed in terms of the statements of the petitioner as well as learned

counsel for the respondent which shall form part of this award. However, it is made clear that the

amount of ` 1,00,000/- (` one lakh only) shall be paid to the petitioner within a period of thirty

days from today, otherwise the same shall carry interest @ 9% per annum from the date of order till

its realization. It is also made clear that thereafter the petitioner will have no right against the

respondent management regarding any claim. 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:

7.4.2016.

(SUSHILKUKREJA),

Presiding Judge,

Labour Court, Shimla.

Camp at Nalagarh.

_________

7.4.2016

Present:

Shri J.C Bhardwaj, AR for petitioner.

Shri A.K Bakshi, Advocate for respondent.

At this stage, vide separate statements recorded today, it has been stated by Shri A.K

Bakshi, Advocate for respondent that the respondent management is ready to pay a sum of

` 1,00,000/- (` one lakh only) to the petitioner towards full & final settlement of the claim in

reference no. 109/2010 and the said amount shall be paid to the petitioner within a period of thirty

days from today, otherwise the same shall carry interest @ 9% per annum from the date of order till

its realization. The petitioner has also accepted the amount offered by the respondent vide separate

statement.

From the perusal of the statement of the petitioner as well as the learned counsel for the

respondent, it is clear that the petitioner has settled the dispute with the respondent and agreed to

accept ` 1,00,000/- from the respondent in full & final settlement of the claim. Since, the matter has

been settled between the parties amicably as such the reference is ordered to be answered

accordingly and the award is passed in terms of the statements of the petitioner as well as learned

counsel for the respondent which shall form part of this award. However, it is made clear that the

amount of ` 1,00,000/- (` one lakh only) shall be paid to the petitioner within a period of thirty

days from today, otherwise the same shall carry interest @ 9% per annum from the date of order till

its realization. It is also made clear that thereafter the petitioner will have no right against the

respondent management regarding any claim. 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:

7.4.2016.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

Camp at Nalagarh.

1584

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Shri Bhag Singh V/S M/S S.M. Electronics, Parwanoo.

9-4-2016

Present: Petitioner in person.

Shri Satish Kumar Berry, sole Proprietor of respondent.

It has been stated by Shri Satish Kumar Berry, sole Proprietor of respondent that the

respondent is ready and willing to pay Rs 30,000/- as full & final settlement of the claim arising out

the reference no. 91/2010. The petitioner has also accepted the amount offered by the respondent.

To this effect statements of petitioner and respondent recorded separately.

In view of the aforesaid statements, the parties have settled the dispute amicably.

Accordingly the reference stands answered in terms of the statements of petitioner and respondent

which shall from part of this award. However, it is made clear that the amount of Rs 30,000/-(Rs

Thirty Thousand only) shall be paid within a period of thirty days from today, failing which the

same shall carry interest @ 9% per annum. 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:

9.4.2016

(Dr. Sushma Kaushal) (Vijay Chopra) (Sushil Kukreja)

Member Member Chairman

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

__________

11.4.2016.

Present:

None for the petitioner.

Shri R.K Khidtta, Advocate for respondent.

Case called twice but none appeared on behalf of the petitioner. It is 10:55 AM. Be called

again.

(SUSHIL KUKREJA)

Presiding Judge,

Labour Court, Shimla.

________

Case called again

Present:

None for the petitioner.

ShriR.K Khidtta, Advocate for respondent.

1585

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

It is 12:50 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.

ShriR.K Khidtta, Advocate for respondent.

It is 3:35 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner.

For today, this case has been fixed for filing of rejoinder and framing of issues but neither

the petitioner nor his counsel appeared before this Court despite the fact that the case has been

repeatedly called which clearly shows that the petitioner is not interested to pursue his case.

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

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

adjudication is as under:

“Whether miscellaneous demands raised vide demand notice dated 18.6.2011 (copy

enclosed) by ShriShyamBihariPandey and 33 other co-workers of Pyramid

Electronics, Village Snade, P.O Manpura, Tehsil Nalagarh District Solan, HP to be

fulfilled by the Occupier/Managing Director M/s Pryamid Electronics, Village Snade,

P.O Manpura, Tehsil Nalagarh, District Solan, HP are legal, justified and

maintainable? If yes, what relief and benefits the above workers are entitled to from

the above management/occupier?”

Since, the petitioner has failed to appear before this Court in order to file rejoinder and to

lead evidence, I have no hesitation in coming to the conclusion that the miscellaneous demands

raised vide demand notice dated 18.6.2011 by the workers of Pyramid Electronics, Village Snade,

P.O Manpura, Tehsil Nalagarh District Solan, HP to be fulfilled by the Occupier/Managing

Director M/s Pryamid Electronics, Village Snade, P.O Manpura, Tehsil Nalagarh, District Solan,

HP arenot legal, maintainable and justified. Hence, in the absence of any material/evidence on

record, it cannot be held that the demands raised vide demand notice dated 18.6.2011 by the

workers to be fulfilled by the respondent are legal, maintainable and justified and as such 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)

11.4.2016.

Presiding Judge,

Labour Court, Shimla.

__________

11.4.2016.

Present:

None for the petitioner.

Shri Rajesh Verma, Advocate for respondent.

1586

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 Rajesh Verma, 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 Rajesh Kumar, Advocate for respondent.

It is 3:25 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner.

For today, this case has been fixed for the evidence of the petitioner but neither the

petitioner nor his counsel appeared before this Court despite the fact that the case has been

repeatedly calledwhich clearly shows that the petitioner is not interested to pursue his

case.Therefore, this Court is left with no other alternative but to decide the reference on the basis of

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

adjudication is as under:

“Whether termination of the services of ShriHussan Singh S/o ShriBalbir Singh

Village Thakuron, P.O GagalShikore, Tehsil Pachhad, District Sirmour, HP w.e.f.

7.6.2012 by SomDutt Builders Pvt. Ltd., Engineering Contractors, NH-22

KumarhattiChowkSolan District Solan HP without an enquiry and complying with

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

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

worker is entitled to from the above employer?”

Since, the petitioner has failed to appear before this Court in order to lead evidence, I have

no hesitation in coming to the conclusion that he has failed to prove that his services had been

terminated w.e.f. 7.6.2012 by the respondent in an illegal and unjustified manner and that too

without conducting an enquiry. Hence, in the absence of any material/evidence on record, it cannot

be held that his services were wrongly and illegally terminated by the respondentand as such the

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

1587

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

completion be consigned to records.

Announced:

(SUSHIL KUKREJA)

11.4.2016.

Presiding Judge,

Labour Court, Shimla.

_________

12.4.2016.

Present:

None for the petitioner.

Respondent already ex-parte.

Case called twice but none appeared on behalf of the petitioner. It is 10:55 AM. Be called

again.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

_________

Case called again

Present:

None for the petitioner.

Respondent already ex-parte.

It is 12:50 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.

Respondent already ex-parte.

It is 3:35 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner.

For today this case was fixed for filing of claim but neither the petitioner nor any other

person authorized on his behalf/ counsel appeared before this Court despite the case having been

called repeatedly which goes to show that the petitioner is not interested to pursue his case. Hence,

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

whatsoever available on the file. The following reference has been received from the appropriate

government for adjudication:

“Whether termination of services of Shri Ashok Kumar S/o Shri Ganga Dutt Sharma

R/o V.P.O Batal, Tehsil Arki, District Solan, HP employed as Peon w.e.f. 1.9.2013by

the Chairman/Principal Pt. Gauri Shankar Memorial Polytechnic, Devnagar P.O

1588

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Bakhalag, Tehsil Arki, District Solan, HP 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 (s)?”

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

histermination of services by the respondent w.e.f. 1.9.2013 to be illegal and unjustified but the

petitioner has failed to file the 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. 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:

12.3.2016.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

_________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUMLABOUR COURT, SHIMLA, (H.P).

Ref. No. 39 of 2013.

Instituted on. 5.7.2013.

Decided on 12.4.2016.

Ratti Ram S/o Shri Ramsa Ram R/o Village Naya Panjur, P.O Hallan, Tehsil Shillai,

District Sirmour, HP.

. .Petitioner.

Vs.

1. The Divisional Forest Officer, Forest Division Renukaji, District Sirmour, HP.

2. Range Officer, Forest Range Shillai, Tehsil Shillai, District Sirmour, HP.

. .Respondents.

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

For petitioner : Shri R.R Rahi, Advocate.

For respondents : Shri H.N Kashyap, ADA.

AWARD

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

“Whether time to time termination of the services of Shri Ratti Ra S/o Ramsa Ram

R/o Village Naya Panjur, P.O Hallan, Tehsil Shillai District Sirmour, HP by The

Divisional Forest Officer, Forest Division Renukaji, District Sirmour during the year,

2004 to 2007 and finally during March/April 2008 as per reply of employer, without

following the provisions of the Industrial Disputes Act, 1947 is legal and justified? If

not, what relief including re-instatement in service, back-wages, seniority and past

1589

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

service benefits and compensation, the above aggrieved workman is entitled to from

the above employer?”

2. In nutshell, the case of the petitioner is that initially he was engaged as daily rated

beldar w.e.f. 1.1.1999 with the respondents department and was asked to work at Forest Beat loza

manal, forest range Shillai and since then the petitioner discharged his duties as assigned to him

with full sincerity, honesty, devotion, missionary zeal as well as to the entire satisfaction of his

superiors and there was no complaint against him. The petitioner had worked till 31st March 2011

continuously and thereafter his services have been terminated orally by the respondents without

complying with the provisions of sections 25-F, 25-G and 25-H of the Industrial Disputes Act,

1947 (hereinafter referred as to Act). It is further stated that the respondents were giving artificial

breaks willfully to the petitioner in order to deprive him the status of regularization. The petitioner

had worked upto 31st March, 2011 but his attendance had not been marked on muster roll as he

was forced to work on bill basis. It is also stated that the employers have violated the principles of

audi aleram partem as no opportunity of being heard had been afforded to the petitioner and even

no enquiry was conducted against him and after his termination, he is unemployed. By filing CWP

no. 3259 of 2011 before the Hon’ble High Court, the petitioner has challenged his termination

which was decided on 12.9.2011. Against this back-drop a prayer for his re-engagement, along-

with back-wages and other consequential service benefits has been made.

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

preliminary objections had been taken qua abandonment and the petitioner had not completed 8/10

years with minimum 240 days in each calendar year. On merits, it has been asserted that the

petitioner was engaged as daily wage labourer for seasonal forestry works in Shillai Range of

Renukaji Forest Division from 1998 and he worked with the department till 2008 in a casual

manner, who used to leave the work at his own will and continued to do so. It is further asserted

that the petitioner had not completed 240 working days in any calendar year. Thereafter, during

March, 2011 the petitioner was given the work on bill basis and not as daily wager and even vide

letter dated 26.11.2011, 20.12.2011 and 5.1.2012, the petitioner was called for duty. Since, the

petitioner was given work on bill/labour contract during March, 2011, hence, section 25-F of the

Act is not applicable. It is further asserted that there has been drastic reduction in quantum of work

and budget in the forest department over past several years and as such only limited works are

available during specific season and senior daily wager and regular employees of the forest

department are currently doing these kind of works. The respondents have not employed any daily

wager after 2008. Since, the petitioner had left the job at his own after 2008, hence, he is not

entitled to any relief. The respondents prayed for the dismissal of the claim petition.

4. By filing rejoinder, the petitioner reaffirmed his allegation by denying those of the

respondents.

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

20.2.2014.

1. Whether time to time termination of the services of the petitioner during the years 2004

to 2007 and finally during March/April 2008, are illegal and unjustified as alleged?

. .OPP.

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

. . OPP.

3. Relief.

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

record of the case carefully.

1590

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

7. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2

Becomes redundant.

Relief.

Reference answered in favour of the respondent and against the petitioner

per operative part of award.

Reasons for findings

Issues no. 1.

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

been terminated by the respondents illegally without serving him any notice as required under

section 25-F of the Act especially when he had completed more than 240 days in each calendar

year. He further contended that the petitioner was engaged as daily wager by the respondents but he

was given artificial breaks in order to deprive him for regularization which is against the provisions

of the Act and even juniors to him are still working with the department. He also contended that

again the petitioner was engaged by the respondents on bill basis w.e.f. March, 2011, against the

provisions of the Act.

9. On the other hand, Ld. ADA for the respondents contended that the services of the

petitioner had never been terminated by the respondents, who himself had abandoned his job

without intimation to the respondents department. He further contended that the petitioner had not

completed 240 days in any calendar year and no juniors to him have been retained by the

department.

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

PW-1/A in examination-in-chief wherein he reiterated almost all the averments as made in the

claim petition. In cross-examination, he denied that he had worked till 2008 with the department.

He further denied that w.e.f. 1998 to 2008 he used to come to work casually. He also denied that he

had been engaged for seasonal forestry work. He denied that after passing the order from the

Hon’ble High Court, the department had written three letters to report for duty which he refused to

accept. He further denied that w.e.f. 1998 to 2008, he had not completed 240 days in any year.

11. On the contrary, the respondents examined three RWs. RW-1 has stated that the

services of petitioner Shri Rati Ram had been engaged in the year, 1998 for seasonal work as

labourer and in the month of October, the petitioner had worked for 31 days with him. The

petitioner had never worked for 240 days with him till 2001, who came to work casually and he

was never terminated by the department. The petitioner had not reported for work in the years 2002

and 2003. In cross-examination, he admitted that the Guard has no power to engage the daily wage

worker. He admitted that the petitioner had worked for more than 240 days in the year, 1999. He

denied that the petitioner had worked continuously till 2003.

12. Shri Fateh Singh, Forest Range Officer has appeared into the witness box as RW-2 and

tendered his affidavit Ex. RW-1/A in examination-in-chief wherein he reiterated almost all the

averments as stated in reply. He also tendered in evidence mandays chart of the petitioner Ex. RW-

1/B, copy of letter dated 26.11.2011 Ex. RW-1/C, letter dated 27.11.2011 Ex. RW-1/D, letter dated

20.12.2011 Ex. RW-1/E and copy of notification dated 14.12.1995 Ex. RW-1/F. In cross-

examination, he denied that the petitioner was engaged in Jan., 1999 on daily wage basis at Loja

Manal Beat, Forest Range Shillai and he worked continuously till 31.3.2011. He further denied that

the mandays chart Ex. RW-1/B has not been prepared on the basis of record.

1591

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

13. RW-3 Shri Basti Ram has tendered his affidavit Ex. RW-2/A in examination in-chief

wherein he has stated that he remained as forest guard in loza-manal beat in shillai range from the

year 1995 to 2003 and the petitioner had worked with the department under different beats. The

Deputy Ranger of Rohnat Block had handed over him the letter (notice) to the petitioner regarding

calling him back on work on different dates during the year, 2011-12 which were duly delivered to

him on his home address but the petitioner refused to accept the same and as such the petitioner

himself has refused to work with the department and used to abandon the job at his own sweet will.

He also tendered in evidence authority letter Ex. RW-1/B and copies of letters dated 21.12.2011

Ex. RW-2/C and 5.1.2011 Ex. RW-2/D. In cross-examination, he admitted that there are many

houses situated near the house of the petitioner and he had not obtained the signatures of any

witness on the letters Ex. RW-2/C and Ex. RW-2/D. He further admitted that now days the work is

being taken on bill basis and the attendance of the workers is not marked on muster roll.

14. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof, it has become clear that initially the petitioner was engaged as beldar on daily wages basis

by the respondent in the year 1998 as is evident from the mandays chart Ex. RW-1/B. The perusal

of the mandays chart shows that in the year, 1998 the petitioner had worked for 31 days, 225 days

in the year, 1999, 202 days in 2000, 116 days in 2001, 121 days in 2004, 222 days in 2005, 216

days in 2006, 107 days in 2007 and 41 days in 2008. Its perusal further goes to show that the

petitioner had not worked even for a single day in the years 2002 and 2003. From the mandays

chart Ex. RW-1/B, it is abundantly clear that the petitioner has not worked for 240 days in a year

preceding his termination. There is no material on record which could show that the petitioner has

completed 240 working days in twelve calendar months preceding his termination. Not only this,

the petitioner had also worked with the respondent on bill basis in the month of March, 2011 but he

had failed to establish on record that he had completed 240 working days in twelve calendar year

preceding his termination. In 2009 (120) FLR 1007 incase titled as Relip Nagarpalika Vs. Babuji

Gabhaji Thakore and others , the Hon’ble Supreme Court has held as under:

“The burden of proof lies on the workman to show that he had worked continuously for

240 days for the preceding one year and it is for the workman to adduce evidence apart

from examining himself to prove the factum of being in employment of the employer.”

15. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai

Amar Singh, the Hon’ble Supreme Court has held that:--

“Incase workman claims to have worked for more than 10 years as daily wager. Apart

from oral evidence workman has not produced any evidence to prove fact that he has

worked for 240 days. No proof of receipt of salary or wages or any record or order in that

regard was produced: no co-worker was examined; muster roll produced by employer has

not been contradicted. Workman has failed to discharge his burden that he was in

employment for 240 days during preceding 12 months of date of termination of his

service. Workman not entitled for protection of Section 25-F before his service was

terminated.”

A bare perusal of the extract of the judgment re-produced, hereinabove, shows that the

burden to prove completion of 240 days service lies on the workman and this burden is discharged

on workman stepping in the witness box and adducing cogent evidence. However, in the instant

case, the petitioner has failed to prove on record that he had put in 240 days in twelve calendar

months preceding his termination. From the perusal of mandays chart, Ex. RW-1/B, it is abundantly

clear that the petitioner had not completed 240 working days in the calendar year preceding his

termination. Hence, the case of the petitioner does not fall under section 25-F of the Industrial

Disputes Act, 1947 and as such no protection of section 25-F can be granted to the petitioner.

1592

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

16. Thus, having regard to the entire evidence on record and on the strength of the above

cited rulings, it can safely be concluded that the petitioner has failed to prove on record that he has

completed 240 working days in twelve calendar months preceding his termination as it was

incumbent upon the petitioner to prove this necessary ingredient that he had completed 240

working days in twelve calendar months preceding his termination.

17. Now adverting to the other aspects of the case, the petitioner has categorically stated as

PW-1 that his services had been terminated by the respondents in an illegal manner without

following the mandatory provisions of the Act. The learned counsel for the petitioner also

contended that neither any notice was issued to the petitioner by the respondents for his alleged

abandonment from duties nor any enquiry was held, therefore, it cannot be said that the petitioner

had abandoned his job and as such the termination of the services of the petitioner is in violation of

the provisions of the Act. However, I am not inclined to accept this contention of the learned

counsel for the petitioner in view of the overwhelming evidence on record which goes to show that

the services of the petitioner had not been terminated by the respondents rather he himself had

abandoned his job. The respondents had issued letters to the petitioner to resume his duties but

despite that he had failed to resume his duties, his such conduct clearly speaks that he himself had

abandoned his job and his case would not fall within the definition of retrenchment as such there is

no question of violation of any provision of the Act.

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

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

even fresh persons have been engaged by the respondents as such the respondents had violated the

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

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

him have been retained by the respondents. Hence, in the absence of any cogent and satisfactory

evidence on record, the case of the petitioner does not fall under section 25-G and 25-H of the Act.

19. Thus, in view of the law laid down (supra) and my foregoing discussion, I have no

hesitation in holding that time to time termination of the services of the petitioner during the year,

2004 to 2007 and finally in March/April 2008 by the respondents without following the provisions

of the Act is not illegal and unjustified. Accordingly, issue no.1 is decided in favour of the

respondents and against the petitioner.

Issue no.2.

20. Since, the petitioner has failed to prove issue no.1 above, this issue becomes

redundant.

Relief.

As a sequel to my above discussion and findings on issues no.1 & 2, the claim of the

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

favour of the respondents and against the petitioner. 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 in the open Court today on this 12th day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

1593

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

18.4.2016.

Present:

None for the petitioner.

Shri R.K Khidtta, Advocate for respondent.

Case called twice but none appeared on behalf of the petitioner union despite having been

served for today. It is 10:50 AM. Be called again.

(SUSHIL KUKREJA),

Presiding Judge,

Labour Court, Shimla.

_________

Case called again

Present:

None for the petitioner.

Shri R.K Khidtta, Advocate for respondent.

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

called after lunch.

(SUSHIL KUKREJA)

Presiding Judge,

Labour Court, Shimla.

________

Case called after lunch

Present:

None for the petitioner.

Shri R.K Khidtta, Advocate for respondent.

It is 3:25 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner union despite having 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 the petitioner union 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 available on file. The reference sent by the appropriate government for

adjudication is as under:

“Whether non-payment of wages by the Assistant Manager (Civil) M/s Sai

Engineering Foundation Shimla, Mini Hydro Project (5MW) Camp Office Dhamwari,

District Shimla, HP to their all workers w.e.f. 18.1.2013 to 20.3.2013 on account of

stoppage of work due to heavy snow-fall, is legal and justified? If not, what monetary

and other benefits the aggrieved workers are entitled to from the above employer (s)/

Management?”

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

held that the non-payment of wages by the Assistant Manager (Civil) M/s Sai Engineering

Foundation Shimla, Mini Hydro Project (5MW) Camp Office Dhamwari, District Shimla, HP to

their all workers w.e.f. 18.1.2013 to 20.3.2013 on account of stoppage of work due to heavy snow-

fall, is illegal and unjustified. Hence, the reference is answered against the petitioner union and the

1594

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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)

18.4.2016. Presiding Judge,

Labour Court, Shimla.

_________

19.4.2016.

Present:

Shri R.K Khidtta, Advocate for petitioner.

Shri Rajeev Sharma, Advocate for respondent.

Today, also no claim petition has been filed on behalf of the petitioner. It may be pertinent

to mention here that this case is being listed for filing of claim since 26.9.2015 and various

opportunities have been afforded to the petitioner to file claim but the same has not been filed.

Since, the petitioner has failed to file any claim despite opportunities, hence, this Court is left with

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

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

“Whether termination of the services of Shri Vikas Thakur S/o Shri Ashok Kumar,

VPO Baddi, Ward No. 1, Baddi, District Solan, HP during May-June, 2014 by the

Employer/General Manager M/s Auro Dyeing, Sai Road Baddi, District Solan, HP

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

justified? If not, to what relief of reinstatement, compensation and other service

benefits

the

above

aggrieved

workman

is

entitled

to

from

the

above

employer/management?”

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

termination during May-June, 2014 by the respondent i.e the Employer/General Manager M/s Auro

Dyeing, Sai Road Baddi, District Solan, HP without complying with the provisions of the Industrial

Disputes Act, 1947 to be illegal and unjustified but the petitioner has failed to file any claim in

support thereof. Moreover, the petitioner has also failed to lead any evidence before this Court in

order 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. 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:

19.4.2016.

(SUSHIL KUKREJA),

Presiding Judge

Labour Court, Shimla.

_________

23.4.2016.

Present:

None for the petitioner.

Shri Balwant Thakur, Advocate for respondent.

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.

1595

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Case called again

Present:

None for the petitioner.

Shri Balwant Thakur, 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 Balwant Thakur, Advocate for respondent.

It is 3:25 PM. Case called repeatedly in pre and post lunch sessions but none appeared on

behalf of the petitioner. For today, this case has been listed for filing of rejoinder and framing of

issues but none appeared on behalf of the petitioner despite the fact that last opportunity was

granted in this respect. Since, the petitioner has failed to appear before this Court and to file

rejoinder, it shows that the petitioner 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 available on file. The reference sent by the appropriate government for adjudication is

as under:

“Whether termination of the services of Shri Arun Kumar S/o Shri Gargan Singh R/o

Village & P.O Daro Daria, Tehsil Pachhad, District Sirmour, HP, who was employed

as mess helper w.e.f. 15.4.2011 by the Registrar, Dr. Y.S Parmar University of

Horticulture and Forestry Nauni District Solan, HP without complying the provisions

of the Industrial Disputes Act 1947 is legal and justified? If not, what amount of back-

wages, seniority, past service benftis and from which date the above worker is entitled

to from the above employer?”

In the absence of any evidence/material on behalf of petitioner, it cannot be held that the

termination of the services of the petitioner w.e.f. 15.4.2011 by the respondent without complying

with the provisions of the Industrial Disputes Act, 1947, is illegal and unjustified. 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)

23.4.2016.

Presiding Judge,

Labour Court, Shimla.

1596

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUMLABOUR COURT, SHIMLA, (H.P).

Ref. No. 15 of 2011.

Instituted on. 13.6.2011.

Decided on 28.4.2016.

Ashwani S/o late Shri Dhruv Chand R/o Village Shehai, P.O Beri, Tehsil Sadar, District

Mandi, HP.

. .Petitioner.

Vs.

M/s SCL Infratech Ltd., Tidong-Hydro Electric Project, Project Office, Hospital Morh,

Reckong Peo, HP though its General Manager.

. .Respondent.

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

For petitioner : Ms. Shikha Chauhan, Advocate vice csl.

For respondent : Shri Rajesh Thakur, Advocate vice csl.

AWARD

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

“Whether termination of the services of Shri Ashwani (welder) C/o CITU Office near

District Hospital Reckong Peo, District Kinnaur, HP by the management of M/s SCL

Infratech Ltd., Tidong-Hydro Electric Project, Kinnaur District Kinnaur, HP w.e.f.

13.4.2010 without following the provisions of the Industrial Disputes Act, 1947 as

alleged by the above named workman is legal and justified? If not, to what back

wages, service benefits and relief the above named worker is entitled to from the

concerned management?”

2. Briefly, the case of the petitioner is that he was appointed as Welder by the respondent

in the month of June, 2009 on monthly salary of ` 6,000/- and served as such almost ten months and

has completed more than 120 days as per section 25-B of the Industrial Disputes Act, 1947

(hereinafter referred to as Act). Even, the petitioner had worked with the respondent for 12 hours in

a day but he was not paid over-time charges and his services had been terminated w.e.f. 13.4.2010

without giving any prior notice, reason and opportunity of being heard as per the sections 25-G and

25-H of the Act. It is further stated that juniors to the petitioner/similar situated persons are still

working with the respondent. It is further stated that no enquiry, show cause notice and charge

sheet was issued to the petitioner before terminating his services. Against this back-drop a prayer

has been made for his re-engagement, along-with back-wages and other consequential service

benefits.

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

preliminary objections had been taken qua maintainability, concealment of material facts, the

petitioner had not approached this Court with clean hands and that the petitioner has failed to fulfill

the conditions precedent to his employment. On merits, it has been asserted that according to terms

and conditions of the appointment, the petitioner had to complete minimum of one year of

uninterrupted service with the respondent but he had not completed more than 120 days as per

1597

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

section 25-B of the Act. It is denied that the petitioner was working indigenously with full activity

and had worked for more than 12 hours in a day. It is averred that the work of the petitioner was not

satisfactory as he always shirk from his work and availed unnecessary leaves and remained in the

activities which were detrimental to the interest of the respondent and hampered the progress of

work. It is further asserted that the petitioner was given a notice before terminating his services as

per the rules and regulation of the company and his termination was governed under the clause 6 of

the appointment letter. The respondent prayed for the dismissal of the claim petition.

4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondent.

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

20.6.2013.

1. Whether the services of the petitioner w.e.f. 13.4.2010, have been terminated

without following the provisions of the Industrial Disputes Act, 1947 in an illegal

and unjustified manner as alleged?

. .OPP.

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

entitled to?

. .OPP.

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

. .OPR.

4. Relief.

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

record of the case carefully.

7. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no. 1

No.

Issue no. 2

Becomes redundant.

Issue no. 3

No.

Relief.

Reference answered against the petitioner and in favour of respondent per

operative part of award.

Reasons for findings.

Issues no.1.

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

been terminated by the respondent illegally without serving him any notice as required under

section 25-F of the Act It was further urged that the termination being stigmatic required a

disciplinary enquiry to be held after issuing a show cause notice to the petitioner and giving an

opportunity of being heard to defend himself by following the principles of natural justice.

9. On the other hand, learned counsel appearing for the respondent contended that the

services of the petitioner had been terminated as per the rules and regulations of the company and

his termination was governed under the clause 6 of the appointment letter. He further contended

that the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is neither stigmatic nor punitive and thus there was no requirement to hold an enquiry

1598

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

before terminating the services of the petitioner while still on probation and the provisions of

section 25-F of the Act are not attracted.

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

PW-1/A in examination-in-chief wherein he reiterated almost all the averments as made in the

claim petition. In cross-examination, he identified his signatures on Ex. R-1 and Ex. R-2. He

admitted that he had received the payment as per serial no.2 of Ex. R-3 and he had received all the

payments from the respondent of his entire service tenure. He denied that under the state of

intoxication, he along-with other workers had quarreled with local people, who made a complaint

against him. He admitted that a complaint mark Y had been received by the company. He denied

that he was legally terminated by the respondent. He also admitted appointment letter Ex. R-4.

11. PW-2 Shri Ramesh Kumar has stated on oath that he was working a cook in the

respondent company w.e.f. October, 2009 and he knows the petitioner who was working with him.

The respondent had engaged new persons/juniors for the same work and also after the retrenchment

of the petitioner. The work is still available with the respondent. In cross-examination, he denied

that the petitioner used to remain on strike for most of time and that the villagers had made a

complaint to the Pradhan Gram Panchyat that the petitioner created ruckus under the influence of

liquor. He admitted that the nature of the work of the petitioner was not of twelve hours per day.

12. On the contrary, the respondent examined one Shri Twinkle Sirkek, HR as RW-1, who

tendered his affidavit Ex, RW-1/A in examination-in-chief wherein he supported all the averments

as made in reply including that the petitioner was appointed as welder on 1.6.2009 vide

appointment letter Ex. R-4 and he was on probation for six months. The petitioner used to remain

busy in illegal activities and his services have been terminated legally as per the terms and

conditions of his appointment letter. In cross-examination, he admitted that no FIR or Court case

has been filed against the petitioner regarding his alleged illegal activities. The services of the

petitioner had been terminated on account of illegal activities and his performance was not

satisfactory. He further admitted that no chargesheet was issued and no enquiry was conducted

before terminating the services of the petitioner. He admitted that junior persons were working at

the time of terminating the services of the petitioner. He denied that the company had not followed

the provisions of the Act before terminating the services of the petitioner.

13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof, it has become clear that the petitioner was engaged as welder by the respondent company

on probation for a period of six months as per appointment letter Ex. R-4 and he joined the

respondent company on 13.6.2009. The services of the petitioner were terminated w.e.f. 13.4.2010

vide termination letter dated 13.4.2010 Ex. PW-1/B.

14. The law in relation to the service of an employee on probation is well settled. The

termination of the services of the probationer, during or at the end of the period of probation does

not affect any of his right, as indeed he has no right to continue to hold the post, save and except

after confirmation. However, where a probationer is stigmatized, evil consequences flow. He has to

live with the stigma all his life. This stigma would affect his future prospects of finding suitable

employment elsewhere. Therefore harmonizing the right of the employer and the right of employee,

the service jurisprudence has recognized that where the termination of the services of a probationer

visits him with a stigma or is penal or malafide, the probationer would have a right to justify that

the cause which has resulted in his being removed is other than relating to his personal capacity,

suitability, utility or capacity to work. In (1999) 2 SCC 21, titled as Radhey Shyam Gupta Vs.

U.P State Agro Industries Corporation Ltd., and another, it has been held by the Hon’ble Apex

Court that the test applicable to government servants or public sector employees, are equally

applicable to labour dispute of such nature relating to the private sector. In (2010) 2 SCC 623,

1599

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

titled as Chaitanya Prakash & another Vs. H. Omkarappa, it has been held by the Hon’ble

Supreme Court that even if an order of termination refers to unsatisfactory service of the person

concerned, the same cannot be said to be stigmatic. The relevant portion of the aforesaid judgment

is reproduced as under:

“18. It is no longer res integra that even if an order of termination refers to unsatisfactory

service of the person concerned, the same cannot be said to be stigmatic……………….

19……………………………………..

20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, this Court

had the occasion to determine as to whether the impugned order therein was a letter of termination

of services simpliciter or stigmatic termination. After considering various earlier decisions of this

court in para 21 of the aforesaid decision it was stated by this Court thus :--

“21. One of the judicially evolved tests to determine whether in substance an order of

termination is punitive is to see whether prior to the termination there was (a) a full-scale

formal enquiry (b) into allegations involving moral turpitude or misconduct which (c)

culminated in a finding of guilt. If all three factors are present the termination has been held

to be punitive irrespective of the form of the termination order. Conversely if any one of the

three factors is missing, the termination has been upheld.”

21. In Abhijit Gupta, this Court considered as to what will be the real test to be applied in a

situation where an employee is removed by an innocuous order of termination i.e whether he is

discharged as unsuitable or he is punished for his misconduct. In order to answer the said question,

the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V.

Allahabad Bank where it is stated thus :--

“14…….As pointed out in this judgment, expressions like “want of application”, “lack of

potential” and “found not dependable” when made in relation to the work of the employee

would not be sufficient to attract the charge that they are stigmatic and intended to dismiss

the employee from service.”

In 2010 LLR 970 case titled as Ram Lal Sharma Vs. Himachal Road Transport Corporation

& Anr., it has been held by our own Hon’ble High Court that it is always expected from the

employer to keep on reviewing the work and conduct of the employee to assess whether he is

suitable to be retained on the post or not during the period of probation. The relevant portion of the

aforesaid judgment is reproduced as under:

“In the present case, the notice has been issued to the petitioner when the employer was not

satisfied with his work and conduct. It is always expected from the employer to keep on

reviewing the work and conduct of the employee to assess whether he is suitable to be

retained on the post or not during the period of probation. The petitioner was on probation

for a period of two years which was extended by another one year. It was during the

extended period of probation that his work and conduct was looked into by the employer.

The fact that it has been mentioned in the notice that few passengers were found ticket less

at the time of checking of the bus will not make the termination of the petitioner

stigmatic/punitive. This was quoted only to apprise the petitioner that his work and conduct

was not satisfactory.”

15. From the aforesaid decisions, the legal position which emerges is that where an

enquiry is conducted into an alleged misconduct committed by the probationer behind his back and

a simple order of termination is passed founded on the report of the enquiry indicting the

probationer, the action of the termination of the services of the probationer would be tainted. But

1600

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

where no findings are arrived at, any enquiry or no enquiry is held but the employer chooses to dis-

continue the services of an employee against whom complaints are received, it would be a case of

complaints motivating the action of termination of the services of the probationer and hence would

not be tainted.

16. In the back-drop of the above legal position, now it has to be determined as to whether

the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is stigmatic/punitive and tainted. The petitioner was on probation and his services have

been terminated during the period of probation. No material has been placed on record by the

petitioner that his services have been confirmed at any point of time. The appointment of the

petitioner was subject to the conditions of appointment stipulated in the appointment letter Ex. R-4.

In the terms and condition of the appointment letter it has been clearly mentioned that if the

services of the petitioner are not satisfactory, the same shall be terminated without any notice or

without assigning any reason. It has further been mentioned in the appointment letter that the

petitioner will not enter into any activity which shall be detrimental to the interests of the company

or hamper the progress of work and if found defaulter, the services of the petitioner shall be liable

for termination without any notice. It has been averred in the reply to the claim petition that the

work of the petitioner was not satisfactory as he always shirk from his work and availed un-

necessary leave and in addition to this the petitioner always remained in the activities which were

detrimental to the interest of the respondent and hampered the progress of work. In the affidavit by

way of evidence Ex. RW-1/A, it has been stated that the respondent received a complaint from the

local people of the locality against the petitioner and other two co-workers about the quarrelling

with the people of the locality in drunken state and despite several warnings the petitioner did not

restrain himself from prohibited activities. The petitioner was neither put to notice, nor any

chargesheet was issued to him and thereafter, the competent authority passed the order dated

13.4.2010 Ex. PW-1/B terminating the services of the petitioner. At this stage, it will be relevant to

reproduce the extract of the termination letter which is as under:

“Please refer to para-6 of your appointment letter no: Tidong/AL/0057 dated 1.6.2009. Your

service hereby stands terminated w.e.f. 13.4.2010. You may collect your full & final dues

from the office of the company at REckong Peo on any working day.”

A bare perusal of the aforesaid order of termination dated 13.4.2010, would show that it was

not passed by way of punishing the petitioner for any misconduct. The misconduct was only a

motive and not foundation leading to the termination of the services of the petitioner. In such a

situation, it cannot be said that the order dated 13.4.2010, Ex. PW-1/B was stigmatic or punitive in

nature. It was only an order of termination simpliciter and no stigma was attached to it and it cannot

be regarded as punitive requiring an enquiry into his conduct or attracting the principles of natural

justice.

17. Now, the next question which arises for consideration before this Court is as to

whether section 25-F of the Act is attracted in the present case. The stand of the respondent is that

the petitioner was a probationer and during the period of probation his services could be terminated

without any notice or without assigning any reason as stipulated in the appointment letter as such

the termination of the petitioner did not amount to retrenchment and provisions contained in section

25-F of the Act are not attracted.

18. In AIR 1994 Supreme Court 1343 titled as M. Venugopal Vs. Divisional Manager,

Life Insurance, Corporation of India, Machilipatnam, Andra Pradesh and another, the

Hon’ble Apex Court had an occasion to consider similar case of termination of probationer and it

was held that the employer was entitled to terminate the services of a probationer during the period

of probation without any notice. It was further held that the termination of the probationer shall be

1601

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

deemed to be retrenchment within the meaning of section 2 (oo) of the Act. The relevant portion of

the aforesaid judgment reads as under:

“14. The amendments introduced in Section 48 of the Corporation Act have clearly

excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the

rules framed under Section 48(2)(cc). The result whereof will be that termination of the

service of the appellant shall not be deemed to be a "retrenchment" within the meaning of

Section 2(oo) even if sub-section (bb) had not been introduced in the said section. Once

Section 2(oo) is not attracted, there is no question of application of Section 25-F on the

basis of which the termination of the service of the appellant can be held to be invalid. The

termination of the service of the appellant during the period of probation is in terms of the

order of appointment read with I Regulation 14 of the Regulations, which shall be deemed

to be now Rules under Section 48(2)(cc) of the Corporation Act.

15. Even under general law, the service of a probationer can be terminated after making an

overall assessment of his performance during the period of probation and no notice is

required to be given before termination of such service. This aspect has been examined by

this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology,

Bangalore v. Dr Pandurang Godwalka where it has been pointed out that if the performance

of the employee concerned during the period of probation is not found to be satisfactory on

overall assessment, then it is open to the competent authority to terminate his service.”

19. In the instant case, the conditions incorporated in the letter of appointment clearly

provide for termination of service during the period of probation without any notice and without

any reason. Therefore, it can safely be held that in bringing about an end to the services of the

petitioner during the period of probation, the respondent was not required to give any notice or to

pay any compensation in terms of section 25-F of the Act. The termination of the services of the

petitioner did not amount to retrenchment and could not be invalidated for non-compliance of

section 25-F of the Act.

20. Thus, in view of the law laid down (supra) and my foregoing discussion, I have no

hesitation in holding that the termination of the services of the petitioner w.e.f 13.4.2010 by the

respondent is not illegal and unjustified. Accordingly, issue no.1 is decided in favour of the

respondent and against the petitioner.

Issue no. 2.

21. Since, the petitioner has failed to prove issue no.1 above, this issue becomes

redundant.

Issue No. 3.

22. In support of this issue, no evidence has been led by the respondent. However, the

petitioner has filed this claim petition pursuant to the reference made by the appropriate

government to this Court for adjudication and I find nothing wrong with this petition which is

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

respondent.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

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

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

1602

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

to records.

Announced in the open Court today on this 28th day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUMLABOUR COURT, SHIMLA, (H.P).

Ref. No. 16 of 2011.

Instituted on. 13.6.2011.

Decided on 28.4.2016. Ashok Kumar S/o

Shri Dilip Singh R/o VPO Chaura, Tehsil Nichar, District Kinnaur, HP.

. .Petitioner.

Vs.

M/s SCL Infratech Ltd., Tidong-Hydro Electric Project, Project Office, Hospital Morh,

Reckong Peo, HP though its General Manager.

. .Respondent.

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

For petitioner : Ms. Shikha Chauhan, Advocate vice csl.

For respondent : Shri Rajesh Thakur, Advocate vice csl.

AWARD

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

“Whether termination of the services of Shri Ashok Kumar (Electrician) C/o CITU

Office near District Hospital Reckong Peo, District Kinnaur, HP by the management

of M/s SCL Infratech Ltd., Tidong-Hydro Electric Project, Kinnaur District Kinnaur,

HP w.e.f. 13.4.2010 without following the provisions of the Industrial Disputes Act,

1947 as alleged by the above named workman is legal and justified? If not, to what

back wages, service benefits and relief the above named worker is entitled to from the

concerned management?”

2. Briefly, the case of the petitioner is that he was appointed as Electrician by the

respondent on 1.7.2009, on monthly salary of ` 6,000/- which was lateron reduced to ` 5700/- and

served as such almost eight months and has completed more than 120 days as per section 25-B of

the Industrial Disputes Act, 1947 (hereinafter referred to as Act). Even, the petitioner had worked

with the respondent for 12 hours in a day but he was not paid over-time charges and his services

had been terminated w.e.f. 13.4.2010 without giving any prior notice, reason and opportunity of

being heard as per the sections 25-G and 25-H of the Act. It is further stated that juniors to the

petitioner/similar situated persons are still working with the respondent. It is further stated that no

1603

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

enquiry, show cause notice and chargesheet was issued to the petitioner before terminating his

services. Against this backdrop a prayer has been made for his re-engagement, along-with back-

wages and other consequential service benefits.

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

preliminary objections had been taken qua maintainability, concealment of material facts, the

petitioner had not approached this Court with clean hands and that the petitioner has failed to fulfill

the conditions precedent to his employment. On merits, it has been asserted that according to terms

and conditions of the appointment, the petitioner had to complete minimum of one year of

uninterrupted service with the respondent but he had not completed more than 120 days as per

section 25-B of the Act. It is denied that the petitioner was working indigenously with full activity

and had worked for more than 12 hours in a day. It is averred that the work of the petitioner was not

satisfactory as he always shirk from his work and availed unnecessary leaves and remained in the

activities which were detrimental to the interest of the respondent and hampered the progress of

work. It is further asserted that the petitioner was given a notice before terminating his services as

per the rules and regulation of the company and his termination was governed under the clause 6 of

the appointment letter. The respondent prayed for the dismissal of the claim petition.

4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondent.

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

20.6.2013.

1.

Whether the services of the petitioner w.e.f. 13.4.2010, have been terminated without

following the provisions of the Industrial Disputes Act, 1947 in an illegal and

unjustified manner as alleged?

. .OPP.

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

to?

. .OPP.

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

. .OPR.

Relief.

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

record of the case carefully.

7. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no. 1

No.

Issue no. 2

Becomes redundant.

Issue no. 3

No.

Relief.

Reference answered against the petitioner and in favour of respondent per

operative part of award.

Reasons for findings

Issues no.1.

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

been terminated by the respondent illegally without serving him any notice as required under

section 25-F of the Act It was further urged that the termination being stigmatic required a

1604

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

disciplinary enquiry to be held after issuing a show cause notice to the petitioner and giving an

opportunity of being heard to defend himself by following the principles of natural justice.

9. On the other hand, learned counsel appearing for the respondent contended that the

services of the petitioner had been terminated as per the rules and regulations of the company and

his termination was governed under the clause 6 of the appointment letter. He further contended

that the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is neither stigmatic nor punitive and thus there was no requirement to hold an enquiry

before terminating the services of the petitioner while still on probation and the provisions of

section 25-F of the Act are not attracted.

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

PW-1/A in examination-in-chief wherein he reiterated almost all the averments as made in the

claim petition. In cross-examination, he identified his signatures on Ex. R-1 to Ex. R-7. He

admitted that he had received the payment as per serial no.3 of Ex. R-8 and he had received all the

payments from the respondent of his entire service tenure. He denied that under the state of

intoxication, he along-with other workers had quarreled with local people, who made a complaint

against him. He admitted that a complaint mark Y had been received by the company. He denied

that he was legally terminated by the respondent.

11. PW-2 Shri Ramesh Kumar has stated on oath that he was working a cook in the

respondent company w.e.f. October, 2009 and he knows the petitioner who was working with him.

The respondent had engaged new persons/juniors for the same work and also after the retrenchment

of the petitioner. The work is still available with the respondent. In cross-examination, he denied

that the petitioner used to remain on strike for most of time and that the villagers had made a

complaint to the Pradhan Gram Panchyat that the petitioner created ruckus under the influence of

liquor. He admitted that the nature of the work of the petitioner was not of twelve hours per day.

12. On the contrary, the respondent examined one Shri Twinkle Sirkek, HR as RW-1, who

tendered his affidavit Ex, RW-1/A in examination-in-chief wherein he supported all the averments

as made in reply including that the petitioner was appointed as welder on 1.7.2009 vide

appointment letter Ex. PW-1/C and he was on probation for six months. The petitioner used to

remain busy in illegal activities and his services have been terminated legally as per the terms and

conditions of his appointment letter. In cross-examination, he admitted that no FIR or Court case

has been filed against the petitioner regarding his alleged illegal activities. The services of the

petitioner had been terminated on account of illegal activities and his performance was not

satisfactory. He further admitted that no chargesheet was issued and no enquiry was conducted

before terminating the services of the petitioner. He admitted that junior persons were working at

the time of terminating the services of the petitioner. He denied that the company had not followed

the provisions of the Act before terminating the services of the petitioner.

13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof, it has become clear that the petitioner was engaged as Electrician by the respondent

company on probation for a period of six months as per appointment letter Ex. PW-1/C and he

joined the respondent company on 1.7.2009. The services of the petitioner were terminated w.e.f.

13.4.2010 vide termination letter dated 13.4.2010 Ex. PW-1/B.

14. The law in relation to the service of an employee on probation is well settled. The

termination of the services of the probationer, during or at the end of the period of probation does

not affect any of his right, as indeed he has no right to continue to hold the post, save and except

after confirmation. However, where a probationer is stigmatized, evil consequences flow. He has to

live with the stigma all his life. This stigma would affect his future prospects of finding suitable

employment elsewhere. Therefore harmonizing the right of the employer and the right of employee,

1605

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

the service jurisprudence has recognized that where the termination of the services of a probationer

visits him with a stigma or is penal or malafide, the probationer would have a right to justify that

the cause which has resulted in his being removed is other than relating to his personal capacity,

suitability, utility or capacity to work. In (1999) 2 SCC 21, titled as Radhey Shyam Gupta Vs.

U.P State Agro Industries Corporation Ltd., and another, it has been held by the Hon’ble Apex

Court that the test applicable to government servants or public sector employees, are equally

applicable to labour dispute of such nature relating to the private sector. In (2010) 2 SCC 623,

titled as Chaitanya Prakash & another Vs. H. Omkarappa, it has been held by the Hon’ble

Supreme Court that even if an order of termination refers to unsatisfactory service of the person

concerned, the same cannot be said to be stigmatic. The relevant portion of the aforesaid judgment

is reproduced as under:

“18. It is no longer res integra that even if an order of termination refers to unsatisfactory

service of the person concerned, the same cannot be said to be stigmatic………………………….

19……………………………………..

20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, this Court

had the occasion to determine as to whether the impugned order therein was a letter of termination

of services simpliciter or stigmatic termination. After considering various earlier decisions of this

court in para 21 of the aforesaid decision it was stated by this Court thus :--

“21. One of the judicially evolved tests to determine whether in substance an order of

termination is punitive is to see whether prior to the termination there was (a) a full-scale

formal enquiry (b) into allegations involving moral turpitude or misconduct which (c)

culminated in a finding of guilt. If all three factors are present the termination has been held

to be punitive irrespective of the form of the termination order. Conversely if any one of the

three factors is missing, the termination has been upheld.”

21. In Abhijit Gupta, this Court considered as to what will be the real test to be applied in a

situation where an employee is removed by an innocuous order of termination i.e whether he is

discharged as unsuitable or he is punished for his misconduct. In order to answer the said question,

the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V.

Allahabad Bank where it is stated thus :--

“14…….As pointed out in this judgment, expressions like “want of application”, “lack of

potential” and “found not dependable” when made in relation to the work of the employee would

not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee

from service.”

In 2010 LLR 970 case titled as Ram Lal Sharma Vs. Himachal Road Transport

Corporation & Anr., it has been held by our own Hon’ble High Court that it is always expected

from the employer to keep on reviewing the work and conduct of the employee to assess whether

he is suitable to be retained on the post or not during the period of probation. The relevant portion

of the aforesaid judgment is reproduced as under:

“In the present case, the notice has been issued to the petitioner when the employer was not

satisfied with his work and conduct. It is always expected from the employer to keep on

reviewing the work and conduct of the employee to assess whether he is suitable to be

retained on the post or not during the period of probation. The petitioner was on probation

for a period of two years which was extended by another one year. It was during the

extended period of probation that his work and conduct was looked into by the employer.

1606

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

The fact that it has been mentioned in the notice that few passengers were found ticket less

at the time of checking of the bus will not make the termination of the petitioner

stigmatic/punitive. This was quoted only to apprise the petitioner that his work and conduct

was not satisfactory.”

15. From the aforesaid decisions, the legal position which emerges is that where an

enquiry is conducted into an alleged misconduct committed by the probationer behind his back and

a simple order of termination is passed founded on the report of the enquiry indicting the

probationer, the action of the termination of the services of the probationer would be tainted. But

where no findings are arrived at, any enquiry or no enquiry is held but the employer chooses to dis-

continue the services of an employee against whom complaints are received, it would be a case of

complaints motivating the action of termination of the services of the probationer and hence would

not be tainted.

16. In the back-drop of the above legal position, now it has to be determined as to whether

the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is stigmatic/punitive and tainted. The petitioner was on probation and his services have

been terminated during the period of probation. No material has been placed on record by the

petitioner that his services have been confirmed at any point of time. The appointment of the

petitioner was subject to the conditions of appointment stipulated in the appointment letter Ex. PW-

1/C. In the terms and condition of the appointment letter it has been clearly mentioned that if the

services of the petitioner are not satisfactory, the same shall be terminated without any notice or

without assigning any reason. It has further been mentioned in the appointment letter that the

petitioner will not enter into any activity which shall be detrimental to the interests of the company

or hamper the progress of work and if found defaulter, the services of the petitioner shall be liable

for termination without any notice. It has been averred in the reply to the claim petition that the

work of the petitioner was not satisfactory as he always shirk from his work and availed un-

necessary leave and in addition to this the petitioner always remained in the activities which were

detrimental to the interest of the respondent and hampered the progress of work. In the affidavit by

way of evidence Ex. RW-1/A, it has been stated that the respondent received a complaint from the

local people of the locality against the petitioner and other two co-workers about the quarrelling

with the people of the locality in drunken state and despite several warnings the petitioner did not

restrain himself from prohibited activities. The petitioner was neither put to notice, nor any

chargesheet was issued to him and thereafter, the competent authority passed the order dated

13.4.2010 Ex. PW-1/B terminating the services of the petitioner. At this stage, it will be relevant to

reproduce the extract of the termination letter which is as under:

“Please refer to para-6 of your appointment letter no: Tidong/AL/0040 dated 1.7.2009. Your

service hereby stands terminated w.e.f. 13.4.2010. You may collect your full & final dues

from the office of the company at Reckong Peo on any working day.”

A bare perusal of the aforesaid order of termination dated 13.4.2010, would show that it was

not passed by way of punishing the petitioner for any misconduct. The misconduct was only a

motive and not foundation leading to the termination of the services of the petitioner. In such a

situation, it cannot be said that the order dated 13.4.2010, Ex. PW-1/B was stigmatic or punitive in

nature. It was only an order of termination simpliciter and no stigma was attached to it and it cannot

be regarded as punitive requiring an enquiry into his conduct or attracting the principles of natural

justice.

17. Now, the next question which arises for consideration before this Court is as to

whether section 25-F of the Act is attracted in the present case. The stand of the respondent is that

the petitioner was a probationer and during the period of probation his services could be terminated

1607

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

without any notice or without assigning any reason as stipulated in the appointment letter as such

the termination of the petitioner did not amount to retrenchment and provisions contained in section

25-F of the Act are not attracted.

18. In AIR 1994 Supreme Court 1343 titled as M. Venugopal Vs. Divisional Manager,

Life Insurance, Corporation of India, Machilipatnam, Andra Pradesh and another, the

Hon’ble Apex Court had an occasion to consider similar case of termination of probationer and it

was held that the employer was entitled to terminate the services of a probationer during the period

of probation without any notice. It was further held that the termination of the probationer shall be

deemed to be retrenchment within the meaning of section 2 (oo) of the Act. The relevant portion of

the aforesaid judgment reads as under:

“14. The amendments introduced in Section 48 of the Corporation Act have clearly

excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the

rules framed under Section 48(2)(cc). The result whereof will be that termination of the

service of the appellant shall not be deemed to be a "retrenchment" within the meaning of

Section 2(oo) even if sub-section (bb) had not been introduced in the said section. Once

Section 2(oo) is not attracted, there is no question of application of Section 25-F on the

basis of which the termination of the service of the appellant can be held to be invalid. The

termination of the service of the appellant during the period of probation is in terms of the

order of appointment read with I Regulation 14 of the Regulations, which shall be deemed

to be now Rules under Section 48(2)(cc) of the Corporation Act.

15. Even under general law, the service of a probationer can be terminated after making an

overall assessment of his performance during the period of probation and no notice is

required to be given before termination of such service. This aspect has been examined by

this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology,

Bangalore v. Dr Pandurang Godwalka where it has been pointed out that if the performance

of the employee concerned during the period of probation is not found to be satisfactory on

overall assessment, then it is open to the competent authority to terminate his service.”

19. In the instant case, the conditions incorporated in the letter of appointment clearly

provide for termination of service during the period of probation without any notice and without

any reason. Therefore, it can safely be held that in bringing about an end to the services of the

petitioner during the period of probation, the respondent was not required to give any notice or to

pay any compensation in terms of section 25-F of the Act. The termination of the services of the

petitioner did not amount to retrenchment and could not be invalidated for non-compliance of

section 25-F of the Act.

20. Thus, in view of the law laid down (supra) and my foregoing discussion, I have no

hesitation in holding that the termination of the services of the petitioner w.e.f 13.4.2010 by the

respondent is not illegal and unjustified. Accordingly, issue no.1 is decided in favour of the

respondent and against the petitioner.

Issue no.2.

21. Since, the petitioner has failed to prove issue no.1 above, this issue becomes

redundant.

Issue No.3.

22. In support of this issue, no evidence has been led by the respondent. However, the

petitioner has filed this claim petition pursuant to the reference made by the appropriate

government to this Court for adjudication and I find nothing wrong with this petition which is

1608

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

respondent.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

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

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

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

to records.

Announced in the open Court today on this 28th day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUMLABOUR COURT, SHIMLA, (H.P).

Ref. No. 17 of 2011.

Instituted on. 13.6.2011.

Decided on 28.4.2016.

Sami Ram S/o late Shri Bhogi Ram R/o VPO Urtoo, Tehsil Nirmand, District Kullu, HP.

. .Petitioner.

Vs.

M/s SCL Infratech Ltd., Tidong-Hydro Electric Project, Project Office, Hospital Morh,

Reckong Peo, HP though its General Manager.

. .Respondent.

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

For petitioner : Ms. Shikha Chauhan, Advocate vice csl.

For respondent : Shri Rajesh Thakur, Advocate vice csl.

AWARD

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

“Whether termination of the services of Shri Sami Ram (welder) C/o CITU Office

near District Hospital Reckong Peo, District Kinnaur, HP by the management of M/s

SCL Infratech Ltd., Tidong-Hydro Electric Project, Kinnaur District Kinnaur, HP

w.e.f. 13.4.2010 without following the provisions of the Industrial Disputes Act, 1947 as

alleged by the above named workman is legal and justified? If not, to what back

1609

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

wages, service benefits and relief the above named worker is entitled to from the

concerned management?”

2. Briefly, the case of the petitioner is that he was appointed as Welder by the respondent

on 21.10.2009, on monthly salary of ` 6,000/- and served as such almost six months and has

completed more than 120 days as per section 25-B of the Industrial Disputes Act, 1947 (hereinafter

referred to as Act). Even, the petitioner had worked with the respondent for 12 hours in a day but

he was not paid over-time charges and his services had been terminated w.e.f. 13.4.2010 without

giving any prior notice, reason and opportunity of being heard as per the sections 25-G and 25-H of

the Act. It is further stated that juniors to the petitioner/similar situated persons are still working

with the respondent. It is further stated that no enquiry, show cause notice and chargesheet was

issued to the petitioner before terminating his services. Against this back-drop a prayer has been

made for his reengagement, along-with back-wages and other consequential service benefits.

3.

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

preliminary objections had been taken qua maintainability, concealment of material facts, the

petitioner had not approached this Court with clean hands and that the petitioner has failed to fulfill

the conditions precedent to his employment. On merits, it has been asserted that according to terms

and conditions of the appointment, the petitioner had to complete minimum of one year of

uninterrupted service with the respondent but he had not completed more than 120 days as per

section 25-B of the Act. It is denied that the petitioner was working indigenously with full activity

and had worked for more than 12 hours in a day. It is averred that the work of the petitioner was not

satisfactory as he always shirk from his work and availed unnecessary leaves and remained in the

activities which were detrimental to the interest of the respondent and hampered the progress of

work. It is further asserted that the petitioner was given a notice before terminating his services as

per the rules and regulation of the company and his termination was governed under the clause 6 of

the appointment letter. The respondent prayed for the dismissal of the claim petition.

4. By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the

respondent.

5.

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

20.6.2013.

1. Whether the services of the petitioner w.e.f. 13.4.2010, have been terminated without

following the provisions of the Industrial Disputes Act, 1947 in an illegal and

unjustified manner as alleged?

. .OPP.

2.

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

to?

. .OPP.

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

. .OPR.

3.

Relief.

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

record of the case carefully.

7. For the reasons to be recorded hereinafter while discussing issues for determination, my

findings on the aforesaid issues are as under.

Issue no. 1 No.

Issue no. 2 Becomes redundant.

1610

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Issue no. 3 No.

Relief.

Reference answered against the petitioner and in favour of respondent per

operative part of award.

Reasons for findings

Issues no.1.

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

been terminated by the respondent illegally without serving him any notice as required under

section 25-F of the Act It was further urged that the termination being stigmatic required a

disciplinary enquiry to be held after issuing a show cause notice to the petitioner and giving an

opportunity of being heard to defend himself by following the principles of natural justice.

9. On the other hand, learned counsel appearing for the respondent contended that the

services of the petitioner had been terminated as per the rules and regulations of the company and

his termination was governed under the clause 6 of the appointment letter. He further contended

that the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is neither stigmatic nor punitive and thus there was no requirement to hold an enquiry

before terminating the services of the petitioner while still on probation and the provisions of

section 25-F of the Act are not attracted.

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

PW-1/A in examination-in-chief wherein he reiterated almost all the averments as made in the

claim petition. In cross-examination, he identified his signatures on Ex. R-1 and Ex. R-2. He

admitted that Ex. R-3 is the appointment letter. He admitted that he had received the payment as

per serial no.1 of Ex. R-4 and he had received all the payments from the respondent of his entire

service tenure. He further admitted that warning letter Ex. R-5 was received by him. He denied that

under the state of intoxication, he along-with other workers had quarreled with local people, who

made a complaint against him. He admitted that a complaint mark Y had been received by the

company. He denied that he was legally terminated by the respondent.

11. PW-2 Shri Ramesh Kumar has stated on oath that he was working a cook in the

respondent company w.e.f. October, 2009 and he knows the petitioner who was working with him.

The respondent had engaged new persons/juniors for the same work and also after the retrenchment

of the petitioner. The work is still available with the respondent. In cross-examination, he denied

that the petitioner used to remain on strike for most of time and that the villagers had made a

complaint to the Pradhan Gram Panchyat that the petitioner created ruckus under the influence of

liquor. He admitted that the nature of the work of the petitioner was not of twelve hours per day.

12. On the contrary, the respondent examined one Shri Twinkle Sirkek, HR as RW-1, who

tendered his affidavit Ex, RW-1/A in examination-in-chief wherein he supported all the averments

as made in reply including that the petitioner was appointed as welder on 1.6.2009 vide

appointment letter Ex. R-3 and he was on probation for six months. The petitioner used to remain

busy in illegal activities and his services have been terminated legally as per the terms and

conditions of his appointment letter. In cross-examination, he admitted that no FIR or Court case

has been filed against the petitioner regarding his alleged illegal activities. The services of the

petitioner had been terminated on account of illegal activities and his performance was not

satisfactory. He further admitted that no chargesheet was issued and no enquiry was conducted

before terminating the services of the petitioner. He admitted that junior persons were working at

the time of terminating the services of the petitioner. He denied that the company had not followed

the provisions of the Act before terminating the services of the petitioner.

1611

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof, it has become clear that the petitioner was engaged as welder by the respondent company

on probation for a period of six months as per appointment letter Ex. R-3 and he joined the

respondent company on 1.12.2009. The services of the petitioner were terminated w.e.f. 13.4.2010

vide termination letter dated 13.4.2010 Ex. PW-1/B.

14. The law in relation to the service of an employee on probation is well settled. The

termination of the services of the probationer, during or at the end of the period of probation does

not affect any of his right, as indeed he has no right to continue to hold the post, save and except

after confirmation. However, where a probationer is stigmatized, evil consequences flow. He has to

live with the stigma all his life. This stigma would affect his future prospects of finding suitable

employment elsewhere. Therefore harmonizing the right of the employer and the right of employee,

the service jurisprudence has recognized that where the termination of the services of a probationer

visits him with a stigma or is penal or malafide, the probationer would have a right to justify that

the cause which has resulted in his being removed is other than relating to his personal capacity,

suitability, utility or capacity to work. In (1999) 2 SCC 21, titled as Radhey Shyam Gupta Vs.

U.P State Agro Industries Corporation Ltd., and another, it has been held by the Hon’ble Apex

Court that the test applicable to government servants or public sector employees, are equally

applicable to labour dispute of such nature relating to the private sector. In (2010) 2 SCC 623,

titled as Chaitanya Prakash & another Vs. H. Omkarappa, it has been held by the Hon’ble

Supreme Court that even if an order of termination refers to unsatisfactory service of the person

concerned, the same cannot be said to be stigmatic. The relevant portion of the aforesaid judgment

is reproduced as under:

“18. It is no longer res integra that even if an order of termination refers to unsatisfactory

service of the person concerned, the same cannot be said to be stigmatic………………….

19……………………………………..

20. In Pavanendra Narayan verma v. Sanjay Gandhi PGI of Medical Sciences, this Court

had the occasion to determine as to whether the impugned order therein was a letter of termination

of services simpliciter or stigmatic termination. After considering various earlier decisions of this

court in para 21 of the aforesaid decision it was stated by this Court thus :--

“21. One of the judicially evolved tests to determine whether in substance an order of

termination is punitive is to see whether prior to the termination there was (a) a full-scale

formal enquiry (b) into allegations involving moral turpitude or misconduct which (c)

culminated in a finding of guilt. If all three factors are present the termination has been held

to be punitive irrespective of the form of the termination order. Conversely if any one of the

three factors is missing, the termination has been upheld.”

21. In Abhijit Gupta, this Court considered as to what will be the real test to be applied in a

situation where an employee is removed by an innocuous order of termination i.e whether he is

discharged as unsuitable or he is punished for his misconduct. In order to answer the said question,

the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. V.

Allahabad Bank where it is stated thus :--

“14…….As pointed out in this judgment, expressions like “want of application”, “lack of

potential” and “found not dependable” when made in relation to the work of the employee

would not be sufficient to attract the charge that they are stigmatic and intended to dismiss

the employee from service.”

1612

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

In 2010 LLR 970 case titled as Ram Lal Sharma Vs. Himachal Road Transport

Corporation & Anr., it has been held by our own Hon’ble High Court that it is always expected

from the employer to keep on reviewing the work and conduct of the employee to assess whether

he is suitable to be retained on the post or not during the period of probation. The relevant portion

of the aforesaid judgment is reproduced as under:

“In the present case, the notice has been issued to the petitioner when the employer was not

satisfied with his work and conduct. It is always expected from the employer to keep on

reviewing the work and conduct of the employee to assess whether he is suitable to be

retained on the post or not during the period of probation. The petitioner was on probation

for a period of two years which was extended by another one year. It was during the

extended period of probation that his work and conduct was looked into by the employer.

The fact that it has been mentioned in the notice that few passengers were found ticket less

at the time of checking of the bus will not make the termination of the petitioner

stigmatic/punitive. This was quoted only to apprise the petitioner that his work and conduct

was not satisfactory.”

15. From the aforesaid decisions, the legal position which emerges is that where an

enquiry is conducted into an alleged misconduct committed by the probationer behind his back and

a simple order of termination is passed founded on the report of the enquiry indicting the

probationer, the action of the termination of the services of the probationer would be tainted. But

where no findings are arrived at, any enquiry or no enquiry is held but the employer chooses to dis-

continue the services of an employee against whom complaints are received, it would be a case of

complaints motivating the action of termination of the services of the probationer and hence would

not be tainted.

16. In the back-drop of the above legal position, now it has to be determined as to whether

the order dated 13.4.2010 passed by the competent authority terminating the services of the

petitioner is stigmatic/punitive and tainted. The petitioner was on probation and his services have

been terminated during the period of probation. No material has been placed on record by the

petitioner that his services have been confirmed at any point of time. The appointment of the

petitioner was subject to the conditions of appointment stipulated in the appointment letter Ex. R-3.

In the terms and condition of the appointment letter it has been clearly mentioned that if the

services of the petitioner are not satisfactory, the same shall be terminated without any notice or

without assigning any reason. It has further been mentioned in the appointment letter that the

petitioner will not enter into any activity which shall be detrimental to the interests of the company

or hamper the progress of work and if found defaulter, the services of the petitioner shall be liable

for termination without any notice. It has been averred in the reply to the claim petition that the

work of the petitioner was not satisfactory as he always shirk from his work and availed un-

necessary leave and in addition to this the petitioner always remained in the activities which were

detrimental to the interest of the respondent and hampered the progress of work. In the affidavit by

way of evidence Ex. RW-1/A, it has been stated that the respondent received a complaint from the

local people of the locality against the petitioner and other two co-workers about the quarrelling

with the people of the locality in drunken state and despite several warnings the petitioner did not

restrain himself from prohibited activities. On receipt of the complaint, a warning letter Ex. R-5,

was issued to the petitioner. The petitioner was neither put to notice, nor any chargesheet was

issued to him and thereafter, the competent authority passed the order dated 13.4.2010 Ex. PW-1/B

terminating the services of the petitioner. At this stage, it will be relevant to reproduce the extract

of the termination letter which is as under:

1613

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

“Your service is no longer required by the company w.e.f. 13.4.2010. So you may collect

your full and final dues from the office of the company at Reckong Peo on any working

days.”

A bare perusal of the aforesaid order of termination dated 13.4.2010, would show that it was

not passed by way of punishing the petitioner for any misconduct. The misconduct was only a

motive and not foundation leading to the termination of the services of the petitioner. In such a

situation, it cannot be said that the order dated 13.4.2010, Ex. PW-1/B was stigmatic or punitive in

nature. It was only an order of termination simpliciter and no stigma was attached to it and it cannot

be regarded as punitive requiring an enquiry into his conduct or attracting the principles of natural

justice.

17. Now, the next question which arises for consideration before this Court is as to

whether section 25-F of the Act is attracted in the present case. The stand of the respondent is that

the petitioner was a probationer and during the period of probation his services could be terminated

without any notice or without assigning any reason as stipulated in the appointment letter as such

the termination of the petitioner did not amount to retrenchment and provisions contained in section

25-F of the Act are not attracted.

18. In AIR 1994 Supreme Court 1343 titled as M. Venugopal Vs. Divisional Manager,

Life Insurance, Corporation of India, Machilipatnam, Andra Pradesh and another, the

Hon’ble Apex Court had an occasion to consider similar case of termination of probationer and it

was held that the employer was entitled to terminate the services of a probationer during the period

of probation without any notice. It was further held that the termination of the probationer shall be

deemed to be retrenchment within the meaning of section 2 (oo) of the Act. The relevant portion of

the aforesaid judgment reads as under:

“14. The amendments introduced in Section 48 of the Corporation Act have clearly

excluded the provisions of the Industrial Disputes Act so far as they are in conflict with the

rules framed under Section 48(2)(cc). The result whereof will be that termination of the

service of the appellant shall not be deemed to be a "retrenchment" within the meaning of

Section 2(oo) even if sub-section (bb) had not been introduced in the said section. Once

Section 2(oo) is not attracted, there is no question of application of Section 25-F on the

basis of which the termination of the service of the appellant can be held to be invalid. The

termination of the service of the appellant during the period of probation is in terms of the

order of appointment read with I Regulation 14 of the Regulations, which shall be deemed

to be now Rules under Section 48(2)(cc) of the Corporation Act.

15. Even under general law, the service of a probationer can be terminated after making an

overall assessment of his performance during the period of probation and no notice is

required to be given before termination of such service. This aspect has been examined by

this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology,

Bangalore v. Dr Pandurang Godwalka where it has been pointed out that if the performance

of the employee concerned during the period of probation is not found to be satisfactory on

overall assessment, then it is open to the competent authority to terminate his service.”

19. In the instant case, the conditions incorporated in the letter of appointment clearly

provide for termination of service during the period of probation without any notice and without

any reason. Therefore, it can safely be held that in bringing about an end to the services of the

petitioner during the period of probation, the respondent was not required to give any notice or to

pay any compensation in terms of section 25-F of the Act. The termination of the services of the

petitioner did not amount to retrenchment and could not be invalidated for non-compliance of

section 25-F of the Act.

1614

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

20. Thus, in view of the law laid down (supra) and my foregoing discussion, I have no

hesitation in holding that the termination of the services of the petitioner w.e.f 13.4.2010 by the

respondent is not illegal and unjustified. Accordingly, issue no.1 is decided in favour of the

respondent and against the petitioner.

Issue no.2.

21. Since, the petitioner has failed to prove issue no.1 above, this issue becomes

redundant.

Issue No.3.

22. In support of this issue, no evidence has been led by the respondent. However, the

petitioner has filed this claim petition pursuant to the reference made by the appropriate

government to this Court for adjudication and I find nothing wrong with this petition which is

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

respondent.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

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

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

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

to records.

Announced in the open Court today on this 28th day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

_________

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

TRIBUNALCUM-LABOUR COURT, SHIMLA

Ref. No. 72 of 2009.

Instituted on.17.8.2009.

Decided on. 29.4.2016.

Pawan Kumar S/o Shri Romesh Chand R/o Roshan Building, Totu Chowk, P.O Totu,

Shimla 171001, HP.

. .Petitioner.

VS.

1. State of Himachal Pradesh through FC-cum-Secretary (Agriculture) to the government

of Himachal Pradesh, Shimla.

2. The Director of Agriculture, Himachal Pradesh Bioleauganj, Shimla 171005.

1615

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

3. The Sub Divisional Soil Conservation Officer, Arki District Solan, HP.

4. The Agriculture Development Officer, Soil Conservation Section Kandaghat, Solan,

HP.

. .Respondents.

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

For petitioner

: Shri Sanjeev Sharma, Advocate.

For respondents : Shri H.N Kashyap, ADA.

AWARD

The following reference has been sent by the appropriate government to this Court for

adjudication:

“Whether termination of the services of Shri Pawan Nag S/o Shri Romesh Nag, daily

wage surveyor w.e.f. 3.12.2001 by the Sub Divisional Conservation Officer, Arki

District Solan, HP without following the provisions of Industrial Disputes Act, 1947 is

justified or not? If not, what relief of service and other benefits the worker is entitled

to?”

2. Briefly, the case of the petitioner is that he was initially engaged as daily waged

surveyor by the respondents in the month of September, 1991 at the office of Assistant Soil

Conservator, Dehra District Kangra and thereafter w.e.f. December, 1992 to July, 1993, he worked

as surveyor-cum-supervisor in the Directorate of Agriculture, Shimla and then w.e.f. December,

1994 to July, 1994, he also worked in the office of Assistant Soil Conservator, Arki, District Solan.

Thereafter, the petitioner also worked as daily paid surveyor w.e.f. August, 1994 to March, 1997 in

the office of Deputy Director of Agriculture, Solan and from April, 1997 to 23rd November, 2000,

he discharged his duties with the Assistant Soil Conservator, Arki and there were no breaks in his

service. It is further stated that during Feb., 2000 the respondents started the process of recruitment

to the post of surveyor which were lying vacant in the department of agriculture and the petitioner

was legitimately expecting his regularization but the respondents instead of regularizing his

services and other similarly situated persons invited the names of the persons from the various

employment exchanges and thereafter vide letter dated 20.4.2000, the respondent no.2 notified all

the Regional Officers/Employment Exchanges that the post will be filled up on batch wise basis

and even the petitioner had also submitted a representation dated 23.6.2000 to the respondent no.2

requesting therein for his regularization but his services have been terminated vide letter dated

24.11.2000 and feeling aggrieved and dis-satisfied with the termination, he invoked the jurisdiction

of HP Administrative Tribunal and filed OA no. 3917 of 2000 which was allowed on 19.9.2001 and

the respondents were directed to reengage the services of the petitioner, however, wages for the

period of disengagement to reengagement were not granted but the period in between this was

granted to be counted towards seniority etc. and thereafter vide letter dated 3rd December, 2001,

the services of the petitioner were again terminated. Then, the petitioner again approached the

Administrative Tribunal and filed OA no. 509/2002 which was rejected for want of jurisdiction and

thereafter the petitioner preferred a Civil Writ Petition no. 791 of 2004 before the Hon’ble High

Court which was also dismissed by the Hon’ble High Court by clarifying that if the petitioner

approaches the State Government for making a reference under the industrial disputes within a

period of two months, the same shall be considered in accordance with law. Then, the petitioner

raised a demand notice before the Labour Officer, Shimla but the conciliation proceedings failed

and the appropriate government has made the reference to this Court. It is also stated that being a

workman, the petitioner is entitled to all the protection available to him under the Industrial

Disputes Act, 1947 (hereinafter referred to as Act) and as such his services can be terminated only

after following the provisions of sections 25-K, L and N of the Act which govern the condition

1616

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

precedent for retrenchment of workman and even no retrenchment compensation had been paid to

him. No notice under section 25-N of the Act was given to the petitioner before terminating his

services. Against this back-ground a prayer has been made for his re-instatement along-with all

consequential service benefits.

3. By filing reply, respondents have contested the claim of the petitioner, wherein

preliminary objections had been taken regarding maintainability, barred by law of limitation and

the petitioner was engaged on temporary basis under project. On merits, it has been asserted that

vide report of Shri Daya Chand Peon dated 14.9.2001 the residence of the petitioner was found

locked and thereafter the Bank Draft amounting to Rs. 6150/- was sent through post in lieu of

retrenchment compensation but the same was undelivered with the report that the petitioner had left

the house. It is further asserted that w.e.f. 1.9.1991, the petitioner was engaged as daily waged on

muster roll as per the requirement of labour to implement the particular project/scheme i.e USAID

Dehra and worked only for 71 days till 30.11.1991 and the Project was closed in the month of

September, 1992 and thereafter, he was re-engaged by the department under different schemes and

for various works temporarily as appended below:

Sr.

No.

Designation

Name of Scheme

Period

Total days.

1.

Surveyor

SMF Scheme under ADO Kangra 1.12.1991 to

31.12.1991

20

2.

Daily paid

labourer

TIS Sanan under SDSCO Shimla

7.12.1992 to

31.12.1992

25.

3.

Daily paid

labourer

TIS Sanan under SDCO Shimla

1.1.1993 to

31.1.1993

25

4.

Stone dreiser

TIS JAtoli under SDSCO Shimla

1.5.1993 to

20.5.1993

20

5.

Supervisor

T&E Project under SDSCO Arki

7.6.1993 to

31.12.1993

161

6.

Supervisor

T& E Project

1.1.1994 to

30.6.1994

151

7.

Supervisor

NWDPRA Jhaja Sikori

1.8.94 to

31.12.94

142

8.

Supervisor

NWDPRA Kandaghat

1.1.95 to

31.3.95 &

1.10.95

to30.11.95

150

9.

Supervisor

NWDPRA Kandaghat

1.2.96 to

31.12.96

332

10. Supervisor

NWDPRA Kandaghat

1.1.97 to

31.1.97, 1.3.97

to 31.3.97 &

1.4.97 to

31.12.97

223

11. Supervisor

NWDPRA Kandaghat

1.1.98 to

31.12.98

355

12. Supervisor

NWDPRA Kandaghat

1.1.99 to

31.12.1999

347

13. Supervisor

NWDPRA Kandaghat

1.1.2000 to

24.11.2000

325

14. Surveyor

Soil

conservation

section

Kandaghat

24.9.2001 to

3.12.2001.

64

1617

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

As per the detail, above, the petitioner had worked under the different schemes of temporary

nature as per the availability of work in the particular schemes/projects but he had not completed

240 days in calendar year upto 1995 and due to the closure of the projects, the services of the

petitioner were not required. It is admitted that the respondents had started the process to fill up the

posts of surveyors directly on batch wise basis by inviting the name of the persons from Regional

Officers/Employment Exchanges and the candidates up to the batch of 1985 were called for

interview held on 26.6.2000. It is asserted that the petitioner was discharged due to the non-

availability of work on 24.11.2000 by following the procedure of section 25-F of the Act and the

provision of sections 25-K and L of Chapter- V B are not applicable to the claim of the petitioner. It

is further asserted that the petitioner was dis-engaged due to non-availability of work on 24.11.2000

by following the procedure of section 25-F of the Act and thereafter on the direction of

Administrative Tribunal, he was re-engaged on 24.9.2001 and subsequently he was retrenched from

the daily paid services w.e.f. 3.12.2001 in accordance with the law under section 25-F of the Act

and wages in lieu of one month’s notice period equal to the amount of wages last drawn amounting

to ` 3983/- were paid to the petitioner which had duly been received by him on 19.12.2001. The

respondents prayed for the dismissal of the claim petition.

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

respondents.

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

20.9.2010 and issue no.1 was re-casted on 5.8.2013.

1. Whether the services of the petitioner w.e.f. 3.12.2001 have been terminated in an

illegal and improper manner in contravention of the provisions of the Industrial

Disputes Act, 1947 as alleged?

. .OPP.

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

entitled to?

. .OPP.

3. Whether the claim of the petitioner is time barred?

. .OPR.

4. Relief.

6. I have heard the learned Counsel for the petitioner and learned ADA for respondents

and have also gone through the record of the case carefully.

7. For the reasons to be recorded hereinafter while discussing issues for determination my

findings on the aforesaid issues are as under.

Issue no.1

Yes.

Issue no.2

Entitled to reinstatement in service with seniority and continuity from the

date when he raised the demand notice i.e w.e.f. 3.9.2007 but without

back-wages.

Issue no. 3

No.

Relief.

Reference answered in favour of the petitioner and against the respondent

per operative part of award.

1618

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Reasons for findings

Issue no.1

8. Ld. Counsel for petitioner contended that the petitioner had worked continuously as

daily waged surveyor with the respondents w.e.f. September, 1991 till 3.12.2001 and his services

have been terminated orally without serving any notice and without following the mandatory

provisions of the Act. He further contended that the petitioner had completed 240 working days in

twelve calendar months preceding his termination and even before terminating his services, no

opportunity of being heard was afforded to him. He also contended that the respondent had engaged

other surveyors in the department who are juniors to the petitioner which is clear cut violation of

the provisions of section 25-G & H of the Act and also against the principles of “last come first go”

and 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.

9. On the contrary, learned ADA for respondents contended that the services of the

petitioner had been engaged on daily wages basis and as such he had worked under the different

schemes of temporary nature as per the availability of work in the particular schemes/projects but

he had not completed 240 days in calendar year and due to the closure of the projects, the services

of the petitioner were not required. He further contended that the respondents had started the

process to fill up the posts of surveyors directly on batch wise basis by inviting the name of the

persons from Regional Officers/Employment Exchanges and the candidates up to the batch of 1985

were called for interview held on 26.6.2000. He also contended that the petitioner was discharged

due to the nonavailability of work by following the provisions of section 25-F of the Act.

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

engaged as daily waged surveyor by the respondents in the year, 1991 at Dehra District Kangra and

thereafter w.e.f. 7.12.1992, he had worked at Shimla till 20.5.1993 and w.e.f. 7.6.1993, he had been

working at Arki (SDSCO) Solan where he worked till 24.11.2000 without any break and thereafter

in the month of November, 2000, he had been terminated from service. He filed an OA no. 3917 of

2000, before the Administrative Tribunal which was allowed on 19.9.2001 and he was reengaged in

service. Thereafter on 3.12.2001, his services had been terminated and he again filed an OA no.

509 of 2002 before the Administrative Tribunal. Thereafter, he filed CWP No. 791 of 2004 before

the Hon’ble High Court in which he was directed to file his claim before competent authority.

\Then, he raised demand notice Ex. PW-1A but the conciliation failed and thereafter he filed the

claim before this Court. He was not served three months’ notice before terminating his services.

Before terminating his services, he had worked continuously for 240 days in each calendar year.

The department had engaged other surveyor in the department after his termination and his juniors

are still working with the respondents. At the time of engaging fresh surveyors, he was not called

by the respondents. He was not paid retrenchment compensation. He is unemployed after his

termination. He was terminated illegally by the respondents. In cross-examination, he admitted that

w.e.f. 1.9.1991, he had worked continuously for 72 days and in the year 1992, after the closure of

the project, he was engaged temporarily under different schemes. He denied that due to non-

availability of work, he was retrenched by the department. He admitted that on 24.11.2000, he was

retrenched by the department. He denied that regarding his termination w.e.f. 24.11.2000, he had

been given notice and compensation. He expressed his ignorance that notice under section 25-F

was sent on his address or not. He denied that he had not completed 240 days in the years, 1991 to

1993, 1995, 1997 and 2000. He denied that due not non-availability of work, he was again

retrenched.

11. PW-2 Shri Inder Lal, Senior Assistant has stated that the vacancies of surveyors in the

department from the year 1992 onwards till 2014 is depicted in Ex. PW-2/A and the detail

1619

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

regarding the filling up the posts of surveyors on contract basis is as per Ex. PW-2/B and vide Ex.

PW-2/C one other individual was engaged on contract basis. No surveyor was engaged from the

year 1991 till 2001 on daily wage basis and Ex. PW-2/D is the seniority list of surveyors. Ex. PW-

2/E is the mandays chart of the petitioner and the petitioner was engaged as daily waged surveyor

in the project (US Aid Project) which was under the department of agriculture and the department

had not issued any letter to the petitioner before filling up the posts of surveyors on contract basis.

In cross-examination, he admitted that the US Aid Project was the project of Central Government

for a period of three months and the funds for the said project were allocated by the Central

Government. He further admitted that such projects are on seasonal and co-terminus basis and the

petitioner had remained on daily wages basis in the project and during the year, 2001, the surveyors

were appointed up to the batch of July, 1984. He denied that the petitioner had voluntarily left his

job. The posts of surveyors in the year, 2001 were filled up by advertising the same through

Employment Exchange and no letter was issued to any person by name for filling up the post of

surveyor. He admitted that the petitioner had never applied for the job of surveyor at the time of

advertisement and the person who was appointed on contract basis in the year, 2008 was appointed

from special quota. He further admitted that no junior to the petitioner had been retained by the

department.

12. On the contrary, respondents examined one Shri Naresh Kumar Superintendent, who

has stated that USA Project National Water Soil Development Programme was being implemented

through their department for which the technical staff and labourers were engaged on muster roll

basis from locality. Under this project soil conservation and water shed schemes were being carried

out and on the completion of the schemes, the services of engaged staff and labourers stood

terminated. The petitioner had worked under different sections and different sub divisions as daily

wager surveyor on muster roll. The petitioner was terminated from service on 24.11.2000 due to

non-availability of work by giving notice Ex. RW-1/A, which was duly published in newspaper

vide Ex. RW-1/B. Along-with the notice draft amounting to ` 6,150/- Ex. RW-1/C had also been

sent through registered post on the address of the petitioner. The services of the petitioner had been

reengaged on the orders of the Administrative Tribunal but due to non-availability of work, he was

again retrenched from service after complying with the mandatory provisions of section 25-F of the

Act and wages for one month’s amounting to ` 2655/- along-with retrenchment compensation of `

3983/- had been paid to the petitioner, the receipt of which is Ex. RW-1/D and Ex. RW-1/E is the

notice. The services of the petitioner had legally been terminated due to non-availability of work. In

cross-examination, he admitted that in the years, 1997 to 2000, the petitioner had worked for more

than 240 days and he was working on muster roll. He denied that Ex. RW-1/E had never been sent

to the petitioner and in the year 2001, no notice and compensation had been given to the petitioner.

He admitted that the department had engaged daily waged surveyor in the year, 2001.

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

learned ADA for the respondents 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 respondents as daily waged surveyor on 1.9.1991 and he

worked as such till 23.11.2001 as is evident from the muster roll Ex. PW-2/E. Its perusal goes to

show that the petitioner had worked for 91 days in the year, 1991, 25 days in 1992, 206 days in

1993, 299 days in 1994, 245 days in 1995, 363 days in 1996, 290 days in 1997, 386 days in 1998,

347 days in 1999 and 326 days in 2000 with the respondents at different places. It is also an

admitted fact that firstly the services of the petitioner had been terminated by the respondents on

24.11.2000 and thereafter he preferred an OA before the Administrative Tribunal which was

allowed and the services of the petitioner had been re-engaged and then again his services had been

terminated w.e.f. 3.12.2001. Now, the question which arises for determination before this Court is

as to whether the services of the petitioner w.e.f. 3.12.2001, have been terminated illegally without

1620

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

the compliance of the provisions of the Act. The petitioner as PW-1 has stated that before

terminating his services neither any notice nor any compensation was paid to him. On the other

hand, the stand of the respondents is to the effect that before terminating the services of the

petitioner, notice Ex. RW-1/E, under section 25-F of the Act was issued to him and the wages in

lieu of one month’s notice period ` 2,655/- along-with retrenchment compensation of ` 3,983/- was

remitted through Bank Draft which was duly received by the petitioner as is evident from the

receipt Ex. RW-1/D. Therefore, in view of the overwhelming evidence on record it cannot be said

that the services of the petitioner had been terminated by the respondent without compliance of the

provisions of section 25-F of the Act.

15. The learned counsel for the petitioner next contended that juniors to the petitioner have

been retained and fresh surveyors have been engaged by the respondents without giving an

opportunity to the petitioner for re-employment as such the respondent had violated the provisions

of sections 25-G & 25-H of the Act. It has been held by the Hon’ble Supreme Court in series of

judgments that it is not necessary for the workman to have completed 240 days during preceding

twelve calendar months for taking the benefits of sections 25-G and 25-H of the Act. In a decision

titled as Ajaypal Singh Vs. Haryana Warehousing Corporation (2015) 6 SCC 321, it has been

held by the Hon’ble Apex Court that for attracting section 25-G and 25-H, the workman is not

required to prove that he had worked for a period of 240 days during twelve calendar months

preceding his termination. It has further been held that the retrenched workman shall be given

preference over other workers if the employer proposes to employ other person. The relevant

portion of the aforesaid judgment reads as under:

“11. For attracting the provisions of section 25-G of the Industrial Disputes Act, 1947, the

workman is not required to prove that he had worked for a period of 240 days during twelve

calendar months preceding the termination of his service and it is sufficient for him to plead

and prove that while effecting retrenchment, the employer violated the rule of “last come

first go” without any tangible reason.

12. Section 25-H is couched in wide language and is capable of application to all

“retrenched workmen” and not merely those covered under Section 25-F of the Act.

13. ………………………………………

14. In case if an employer proposes to employ any person, it is mandatory on the part of the

employer to give an opportunity to the retrenched workmen who offer themselves for re-

employment and such workmen who offer themselves for reemployment shall have

preference over other persons. The provision of section 25-H is in conformity with Articles

14 & 16 of the Constitution of India.”

16. In the present case, RW-1 Shri Naresh Kumar an official of the respondent admitted in

cross-examination that in the year, 2001 daily waged surveyors have been appointed as per detail

given in Ex. RX-2. However, the case of the respondent is that they have started the process to fill

up the posts of surveyors directly on batch wise basis by inviting the names of the persons from

Regional Officers/Employment Exchanges and the candidates up to the batch of 1985 were called

for the interview held on 26.6.2000. PW-2, also admitted in cross-examination that the posts of the

surveyors in the year, 2001 were filled up by advertising the same through Employment Exchange

and the surveyors were appointed during the year, 2001 up to the batch of July, 1984. Admittedly,

the petitioner was initially engaged in the month of September, 1991. No material has been

produced on record by the petitioner to show that the respondents had retained his juniors against

the principles of “last come first go” Therefore, in the absence of any material on record, it cannot

be said that the respondents had violated the provisions of section 25-G of the Act.

1621

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

17. PW-2 Shri Inder Pal, official from the Directorate of agriculture has produced on

record the detail regarding filling up of the posts of surveyors on contract basis as per letter Ex.

PW-2/B. He further stated that apart from the persons mentioned in Ex. PW-2/B, another person

was engaged on contract basis as surveyor in the year, 2008 vide letter Ex. PW-2/C. He also stated

that the department had not issued any letter to the petitioner before filling up the post of surveyors.

The perusal of letter dated 4.3.2011 Ex. PW-2/B shows that the Government has conveyed the

approval of posting of twelve surveyors to the Director of agriculture and perusal of letter dated

1.7.2008, Ex. PW-2/C shows that one Shri Parvesh Kumar was appointed as surveyor on contract

basis. No material has been produced on record by the respondents to show that any opportunity

was given to the petitioner for re-employment at the time of filling up of the new posts. Therefore,

from the aforesaid evidence, it is clear that after the termination of the services of the petitioner, the

respondent had appointed fresh surveyors without giving any opportunity to the petitioner for re-

employment in violation of section 25-H of the Act.

18. Thus, having regard to the entire evidence on record, I have no hesitation in coming to

the conclusion that after the termination of the services of the petitioner, fresh surveyors have been

engaged by the respondents and as such the termination of the services of the petitioner by the

respondents without complying with the provisions of section 25-H of the Act is illegal and

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

respondents.

Issue no. 2.

19. 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-H of the Act is illegal

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

continuity from the date when he raised the demand notice i.e w.e.f. 3.9.2007.

20. 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.

21. 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 aterials to rebut the claim…………..”

22. In the present case, the petitioner has failed to discharge his burden by placing any

material on record that he was not gainfully employed after his termination/disengagement.

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

hesitation in holding that the petitioner is not entitled to any back-wages.

1622

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Accordingly, issue no.2 is partly decided in favour of the petitioner and against the

respondent.

Issue no. 3

23. In support of this issue, the learned ADA for respondents contended that the petition

filed by the petitioner is time barred as he has raised the demand notice Ex. PW-1/A after a gap of

six years. But, when regard is given to entire evidence on record it is established that after the

termination of the services of the petitioner w.e.f. 3.12.2001, he approached Administrative

Tribunal and filed OA no. 509/2002 which was disposed of on 14.7.2004 by observing that the

appropriate remedy available to the applicant is to approach the Industrial Tribunal/Labour Court or

any other authority constituted or established under the relevant statute. Admittedly, thereafter the

petitioner preferred CWP no. 791 of 2004 before the Hon’ble High Court, which was also

dismissed on 17.7.2007. However, it was observed by the Hon’ble High Court that if the petitioner

approaches the State Government for making a reference of the industrial dispute within a period of

two months from today, the same shall be considered in accordance with law and delay shall not

come in the way of the petitioner for making a reference. This is because the petitioner has been

bona fide pursuing his remedy before the Tribunal and thereafter before this Court. Thereafter the

petitioner raised a demand notice on 3.9.2007. Therefore, in view of the facts and circumstances of

the present case, the petitioner cannot be blamed for the delay in raising the present dispute as he

kept his dispute alive by filing OA no. 509/2002 before the Administrative Tribunal which was

disposed of on 14.7.2004 and thereafter the petitioner filed CWP no. 791 of 2004 before the

Hon’ble High Court which was disposed of on 17.7.2007 and thereafter the petitioner raised the

industrial dispute on 3.9.2007, Ex. PW-1/A. Moreover, it is not the case of the respondent that due

to the delay in raising the industrial dispute, there is any loss or unavailability of material evidence.

Hence, it cannot be said that delay in raising the industrial dispute is fatal to the reference and as

such the petitioner cannot be debarred from claiming the relief from his employer and mere delay

in challenging the termination would not be a bar to the adjudication of the present dispute which

has been referred to this Court by the appropriate government. Moreover, 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.

24. 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

1623

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

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

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

w.e.f. 3.9.2007. However, the petitioner is not entitled to back wages and as such the reference is

ordered to be answered in favour of the petitioner and against the respondent. Let a copy of this

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

completion, be consigned to records.

Announced in the open Court today on this 29th day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

__________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

TRIBUNAL-CUMLABOUR COURT, SHIMLA, (H.P).

Ref. No. 36 of 2013.

Instituted on. 19.6.2013.

Decided on 29.4.2016.

Ram Rattan S/o Shri Ratti Ram, R/o Village Bhagharani, P.O Isher Nagar, Pinjore, District

Panchkula, Haryana.

. .Petitioner.

Vs.

1. The Managing Director, Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi

Kalan, Baddi District Solan, HP.

2. M/s Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi Kalan, Baddi District

Solan, HP.

. .Respondents.

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

For petitioner : Shri Surinder Mohan Sharma, Advocate.

For respondents : Shri Rupesh Sharma, Advocate.

AWARD

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

1624

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

“Whether termination of the services of Shri Ram Rattan C/o Satish Kumar President

HP AITUC District Committee Solan, H.Q House no. 276, Phase-III Housing Board

Baddi, District Solan, HP by the management of M/s Geep Battries (1) Ltd., Plot no.

66-67, HPSIDC Juddi Kalan Baddi, District solan, HP w.e.f. 23.10.2009 without

following the provisions of the Industrial Disputes Act, 1947 as alleged by the worker,

is legal and justified? If not, what relief including reinstatement in service, back wages,

seniority, past service benefits and compensation the above aggrieved workman is

entitled to from the above management?”

2. In nutshell, the case of the petitioner is that he had joined the respondents on 10.2.2006

and continued as such till his illegal termination/retrenchment. The petitioner was working as tool

turner and was being paid ` 8100/- per month. The services of the petitioner remained continuous

for the purpose of section 25-B of the Act as he had worked for more than 240 days in each

calendar year. It is further stated that at the time of retrenchment/termination of the workman, the

services of many juniors were retained in violation of section 25-G of the Act. The petitioner was

appointed as turner on 23.1.2006. The work and conduct of the petitioner remained excellent during

his tenure with the company as he was never served with any explanation call, warning letter, show

cause notice etc. Against this back-drop a prayer for his re-engagement, along-with back-wages and

other consequential service benefits has been made.

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

preliminary objections had been taken qua maintainability, the petitioner has not come to this Court

with clean hands and the petitioner is gainfully employed. On merits, it has been admitted that the

petitioner joined the respondents as an operator w.e.f. 10.2.2006 but it is denied that the petitioner

was drawing ` 8100/- per month at the time of his abandoning the job. It is admitted that the

petitioner had completed 240 days in one year and a show cause notice to three persons including

the petitioner had been issued as they were found sitting idle during duty hours but the petitioner

instead of filing the reply to show cause notice, abandoned the job. The services of the petitioner

had never been terminated by the respondents, who himself had abandoned his job. The respondent

prayed for the dismissal of the claim petition.

4. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which

were struck on 20.2.2014.

5. Whether the termination of the services of the petitioner w.e.f. 23.10.2009 is illegal

and unjustified as alleged?

. .OPP.

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

. .OPP.

7. Whether this petition is not maintainable as alleged

. .OPR.

8. Relief.

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

record of the case carefully.

6. For the reasons to be recorded hereinafter while discussing issues for determination,

my findings on the aforesaid issues are as under.

Issue no. 1

Yes.

Issue no. 2

Entitled for reinstatement in service with seniority and continuity but

without back-wages.

1625

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Issue no. 3 No.

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

operative part of award.

Reasons for findings

Issues no.1.

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

been terminated by the respondents illegally without serving him any notice as required under

section 25-F of the Act especially when he had completed more than 240 days in each calendar

year. He further contended that before terminating his services no enquiry had been conducted

against him and even the junior persons to the petitioner are still working with the respondents and

fresh workers have been engaged.

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

petitioner had never been terminated by the respondents, who himself had abandoned his job

without any intimation to the respondent.

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

with the respondents on 10.2.2006 and worked as such till 23.10.2009. He was drawing ` 8100/-

per month. He had completed 240 days. He was terminated on 23.10.2009 and juniors to him are

still working with the respondents. Ex. PW-1/A is his appointment letter and vide Ex. PW-1/B, his

PF was being deducted. He was served show cause notices vide Ex. PW-1/C and Ex. PW-1/D

which were duly replied by him vide Ex. PW-1/E to Ex. PW-1/H and the same were sent by him

through courier vide receipts Ex. PW-1/J and Ex. PW-1/K and the copies of information obtained

under RTI Ac are Ex. RW-1/L & Ex. PW-1/M. Ex. PW-1/N is his identity card and Ex. PW-1/O is

ESI Card. He was not issued any chargesheet. In cross-examination, he denied that he had not

followed the orders of his superiors and when three officers of the company had visited the

company, he (petitioner) was not working. He denied that he had abandoned the job at his own.

10. On the contrary, the respondents examined one Shri Masood Ali Baig, as RW-1, who

has stated that the petitioner was appointed as a turner on 23.1.2006 and during the visit of

Chairperson, it was found that Shri Ram Rattan and another two persons were sitting idle and

gossiping with each other and the work was stopped and for this reason a show cause notice Ex.

PW- 1/C was issued to them but the petitioner never came back to the company. All the dues

regarding the work of the petitioner was paid vide Ex. PW-1/B. In cross-examination, he admitted

that Ram Rattan was appointed as turner vide letter dated 23.1.2006 and he joined as such vide

letter Ex. PW-1/A. He further admitted that the petitioner had worked honestly. He denied that the

allegations leveled against the petitioner were wrong. He admitted that the petitioner had filed reply

to show cause notice and they are ready to re-instate the petitioner but without any compensation.

11. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof it has become clear that vide Ex. PW-1/A, the petitioner was appointed as turner on

10.2.2006 by the respondents and he worked as such till 23.10.2009. The only plea taken by the

respondents is to this effect that the services of the petitioner had never been terminated but he

himself had abandoned his job without any intimation and the respondents company is still ready to

take him back in job as is evident from the statement of RW-1 Shri Masood Ali Baig. However,

respondents have failed to prove on record by leading cogent and satisfactory evidence to show that

the petitioner had abandoned the job on his own. By mere alleging that the petitioner had

abandoned the job on his own is not sufficient to prove the stand of the respondents especially

1626

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

when there is nothing on record which could show that the respondents have ever sent any letter or

notice to the petitioner to resume his duties. In State of HP & Others Vs. Bhatag Ram & Another

reported in Latest HLJ 2007 (HP) 903, our own Hon’ble High Court after relying upon the

decision of the Hon’ble Supreme Court in G.T Lad and others V. Chemicals and Fibers India

Ltd., AIR 1979 SC 582 has held that the findings of abandonment is a fact and the same has to be

substantiated by leading evidence. In the present case also, as stated above, the respondents have

failed to prove the plea of abandonment by leading cogent and satisfactory evidence on record as

such it cannot be said that the petitioner has abandoned the job on his own.

12. Now, it has to be seen as to whether the termination of the services of the petitioner is

illegal or unjustified. Admittedly, show cause notices Ex. PW-1/C and Ex. PW-1/D have been

issued to the petitioner which were duly replied by him vide Ex. PW-1/E to Ex. PW-1/H. It has also

been admitted by RW-1 Shri Masood Ali Baiq that the petitioner had filed reply to show cause

notices. 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

discharged or dismissed from service unless he has been afforded reasonable opportunity of being

heard before initiating any action against him by the employer/respondent. It has been admitted by

the respondents in the reply that the petitioner had completed 240 days in one year. 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. 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 Hon’ble High Court

has held that 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.

1627

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

In the instant case, admittedly, the petitioner had worked with the respondents w.e.f.

10.2.2006 to 23.10.2009 continuously meaning thereby the petitioner had completed 240 working

days in twelve calendar months preceding his termination. Even, RW-1 has admitted in his cross-

examination that Shri Ram Rattan had worked honestly. 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. 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. 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……………..”

13. 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 w.e.f. 23.10.2009 is not sustainable in the eyes of law and is

hereby set aside.

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

petitioner have been retained in service and they have been regularized. However, except for the

bald statement of the petitioner, no other evidence has been led by him to prove this fact. Therefore,

in the absence of any cogent and satisfactory evidence on record, it cannot be held that the

provisions of section 25-G & H of the Act are attracted to the present case and any hostile

discrimination was meted out against the petitioner.

15. 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 of the services of

the petitioner w.e.f. 23.10.2009, by the respondents without complying with the provisions of the

Act, is illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and

against the respondents.

Issue no .2.

16. Since, I have held under issue no.1 above that the termination of services of the

petitioner by the respondent without following the provisions of the Act is improper, illegal and

1628

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

continuity.

17. 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.

18. 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…………..”

19. In the present case, the petitioner has failed to discharge his burden by placing any

material on record that he was not gainfully employed after his termination/disengagement.

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

hesitation in holding that the petitioner is not entitled to any back-wages.

Accordingly, issue no.2 is partly decided in favour of the petitioner and against the

respondents.

Issue No. 3.

20. In support of this issue, no evidence has been led by the respondents. However, the

petitioner has filed this claim petition pursuant to the reference made by the appropriate

government to this Court for adjudication and I find nothing wrong with this petition which is

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

respondents.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

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

service forthwith with seniority and continuity. However, the petitioner is not entitled to back

wages and as such the reference is ordered to be answered in favour of the petitioner and against

the respondents. Let a copy of this award be sent to the appropriate government for publication in

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

Announced in the open Court today on this 29th Day of April, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

1629

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 27th 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:—

Sr.

No.

Ref.

No.

Petitioner

Respondent

Date of Award/

Order

1.

118/14

Chanchal Singh

Director Surya Resorts Dharamshala

01-03-2016

2.

97/14

Ajay Kumar

M/S Tigaksha Metallics

16-03-2016

3.

102/15

Roop Chand

E.E.HPPWD, Killar

21-03-2016

4.

109/15

Anita Kumari

E.E.HPPWD, Killar

21-03-2016

5.

93/15

Basant Singh

E.E.HPPWD, Killar

21-03-2016

6.

205/15

Rusli Devi

E.E.HPPWD, Killar

21-03-2016

7.

210/15

Pyar Dei

E.E.HPPWD, Killar

21-03-2016

8.

98/15

Om Prakash

E.E.HPPWD, Killar

21-03-2016

9.

162/15

Dharam Diyal

E.E.HPPWD, Killar

21-03-2016

10.

94/15

Ram Kishan

E.E.HPPWD, Killar

21-03-2016

11.

161/15

Sesar Chand

E.E.HPPWD, Killar

21-03-2016

12.

201/15

Param Dass

E.E.HPPWD, Killar

21-03-2016

13.

158/15

Maghi

E.E.HPPWD, Killar

21-03-2016

14.

136/15

Nand Lal

D.F.O. Hamirpur

21-03-2016

15.

134/15

Budhi Singh

D.F.O. Hamirpur

21-03-2016

16.

135/15

Rakesh Kumar

D.F.O. Hamirpur

21-03-2016

17.

67/15

Ram Pal

D.F.O. Hamirpur

21-03-2016

18.

68/15

Roop Lal

D.F.O. Hamirpur

21-03-2016

1630

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

19.

110/14

Kanta Devi

M.D. Gen. Industries

22-03-2016

20.

113/14

Devi Rani

M.D.Gen.Industries

22-03-2016

21.

235/14

Renu Vaidya

Asstt. Town Planner

23-03-2016

22.

227/14

Rakesh Singh

M/S Shivansh Motors

29-03-2016

23.

31/14

Kanshi Ram

D.F.O. Sunder Nagar

29-03-2016

24.

72/14

Ramesh Chand

D.F.O. Hamirpur

29-03-2016

25.

08/13

Khem Raj

D.F.O. Sunder Nagar

30-03-2016

26.

297/15

Ashwani Kumar

Manager H.P.Tourism

30-03-2016

27.

74/15

Deep Chand

D.F.O. Shamshi

30-03-2016

28.

73/15

Rohlu Ram

D.F.O. Shamshi

30-03-2016

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.

Ref: No. : 118/2014

Sh. Chanchal Singh s/o Sh. Uttam Singh, r/o V.P.O. Malan, Tehsil & District Kangra, H.P.

. .Petitioner.

Versus

The Employer/Executive Director, Surya Resorts Private Limited, Mcleodganj, Tehsil

Dharamshala, Distt. Kangra, H.P.

. .Respondent.

01-03-2016 Present: Petitioner with Sh. N.L. Kaundal, A.R.

Sh. Paramjeet Bamba, Executive Director for the respondent company in

person.

Sh. Jitender Sharma, adv. csl. for the respondent.

RW Sh. Paramjeet Bamba is present today. He has filed photocopy of cheque No.648049

dated 01-03-2016 P.N.B Shyamnagar which is placed on record.

1631

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

2. Heard. Statement of the petitioner for not pressing of reference no. 118/14 is recorded

which revealed that petitioner has received Rs. 40,000/-(Rs. Forty Thousand only) through cheque

No. 648049 dated 01-03-2016 drawn on PNB Shyam Nagar Dharamshala Bank (Photocopy

enclosed) from the respondent in full and final settlement of claim of petitioner. Statement of RW

Sh. Paramjeet Bamba to this effect has also been recorded separately and placed on file.

3. In view of above stated statements, the reference/claim of the petitioner is disposed of

as withdrawn.

4. Ordered accordingly. The parties to bear their own costs.

5. The reference is answered in the aforesaid terms.

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

and further necessary action / publication.

7. The file, after completion be consigned to the records.

Announced:

01.03.2016

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P

__________

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

CUMINDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.

Ref: No. 97/ 2014

Sh. Ajay Kumar s/o Shri Harnek Singh, r/o Village Nalruha, Tehsil Dehra, Distt. Kangra,

H.P.

. .Petitioner.

Versus

The Managing Director/Employer, M/S Tigaksha Metallics Pvt. Ltd., Plot No.16, Ram

Nagar, Industrial Area Gagret, Tehsil Amb, Distt. Una, H.P.

. .Respondent.

16-03-2016 Present: None for the petitioner.

Sh. Rajesh Kosh, Law Officer for the respondent

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.

1632

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

16-03-2016 Present: None for the petitioner.

Sh. Rajesh Kosh, Law Officer for the respondent

Case has been called again several times but none has appeared on behalf of

petitioner. It is 3.15 P.M. None appearance petitioner or his Authorised Representative 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.

Announced:

16-03-2016

(K.K.Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 102/2015

Date of Institution : 04.03.2015

Date of Decision : 21.03.2016

Shri Roop Chand s/o Shri Manak Chand, r/o Village Chask, P.O. Seichu, 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 Shri Roop Chand S/O Shri Manak

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

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

1633

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

demand notice dated 27-09-2010 regarding his alleged illegal termination of service during

August, 2004 suffers from delay and laches? If not, Whether termination of the services of

Shri Roop Chand S/O Shri Manak Chand, R/O Village Chask, P.O. Seichu, Tehsil Pangi,

District Chamba, H.P. during August, 2004 by the Executive Engineer, Killar Division,

H.P.P.W.D. Killar (Pangi), District Chamba, H.P., without complying with the provisions of

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

seniority, past service benefits and compensation the above worker is entitled to from the

above employer?”

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

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

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

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

month of May, 1981 who continuously worked till August, 2004 in HPPWD 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 August, 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 August, 2004 when the services of petitioner

were terminated by way of oral order, he was not served with one month notice of retrenchment

and at the same time one month’s wages in lieu of notice period had also not been paid to him and

for said reason termination of the services of petitioner was prima facie illegal and unwarranted.

The claimant/petitioner claimed that he had spotless service record who never been charge-sheeted

for any act of indiscipline or negligence or his conduct and even at the time of verbal termination,

no charge-sheet had been served upon him and the at the same time, no opportunity of hearing had

been afforded to him. The petitioner also alleges that he has remained unemployed ever since his

illegal termination from month of August, 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 August, 2004. He further prayed for reinstatement in service w.e.f. month of

August, 2004 along-with back wages, seniority including continuity in service as petitioner has

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

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

between May, 1990 to August, 2004 be counted 160 days continuous service and regularization of

the service of petitioner w.e.f. 01.01.1994 having completed 10 years of service and per the policy

of HP Govt. in pursuance to judgment of Hon’ble Apex Court titled as Mool Raj Upadhayay vs.

State of H.P. and to any other relief petitioner is entitled.

1634

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

stating that petitioner was engaged as daily waged beldar in 1990 who remained engaged till 2004

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

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

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

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

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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2004 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

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

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

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

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

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

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

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

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

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

evidence.

7. 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.

8. From the contentions raised, following issues were framed on 07.07.2015 for

determination:

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

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

. .OPP.

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

to?

. .OPP.

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

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

petitioner as alleged. If so, its effect?

. .OPR.

1635

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.1,20,000/- 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 year 1990 who continuously worked till 2004 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from 1990 to August, 2004. He has also stated on oath that no notice

under Section 25-F of the Act was given by the respondent before terminating his service and at the

same time no compensation in lieu thereof notice period was paid to him and thus his termination

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

all the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in August, 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 he had served respondent with due

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

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

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

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

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

1636

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 his duty as also reflected in mandays chart Ex.

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

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

admitted that no departmental inquiry was initiated against petitioner even after August, 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 he used to leave the job in between and attended the work intermittently

rather he has claimed that intermittent breaks had been deliberately given to him by the respondent

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

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

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

established plea of abandonment.

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

worked for 25 days in the year 1990, 18 days in 1991, 26 days in 1992, 32 days in 1994, 52 days in

1995, 86 days in 1996, 127 days in 1998, 132 days in 1999, 121 days in 2000, 64 days in 2001, 29

days in 2002, 113 days in 2003 and 48 days in 2004 and thus a total of his service in 1990 to 2004

in 13 years he had worked for 902 days in his entire service period. Be it noticed that petitioner had

not worked for more than 160 days and as there is no reference from the Labour Commissioner,

Shimla on the point of artificial breaks, this court is to confine its findings only with regard to

alleged illegal termination. It is evident from mandays chart Ex. RW1/B that in the year 2004 the

petitioner had merely worked for 48 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-

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 August, 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

1637

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

retained whereas petitioner was senior from these co-workers having joined service in 1990 was

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

more than 160 days in preceding 8 years which entitled him for regularization of his 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 August, 2004, he had remained unemployed and was not earning anything thereafter

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

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

examination of the petitioner who has admitted that he had cultivatable land with him and also

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

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

from agricultural land as well as he 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 his agricultural and

manual pursuits, the same were sufficient to maintain him and his 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, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his 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 his

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

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

wages for the period he 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

1638

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

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

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

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

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

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

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

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

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

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

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

(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer

deprives himself 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 him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his employer.

1639

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 he raised the

demand regarding his 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 his acquittal in

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

given to the workman that he would be reinstated after his 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 he 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

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 Marketingcum-Processing

1640

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 his 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. His 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 appellantemployer 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 13 years and actually worked for 902 days as per

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

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

about six years i.e. demand notice was given on 27.9.2010. It is also pertinent to mention here that

petitioner on the date of filing claim petition was ageing 48 years who has sufficient spell of life to

work and earn his livelihood. Taking into consideration factors mentioned above in pursuance to

judgments of Hon’ble Apex Court petitioner would not be entitled either for reinstatement or for

back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013

(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on

1641

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.1,20,000/- (Rupees

one lakh twenty 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.1,20,000/- (rupees one lakh twenty 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 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

1642

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 109/2015

Date of Institution : 05.03.2015

Date of Decision : 21.03.2016

Smt. Anita Kumari d/o Shri Sesar Chand, r/o V.P.O. Saach, Tehsil Pangi, District Chamba,

H.P.

. .Petitioner.

Versus

The Executive Engineer, H.P.P.W.D. Division 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. Anita Kumari D/O Shri Sesar

Chand, R/O V.P.O. Saach, Tehsil Pangi, District Chamba, H.P. before the Executive

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

notice dated 11 09-2007 regarding her alleged illegal termination of service during year

1999 suffers from delay and laches? If not, Whether termination of the services of Smt.

Anita Kumari D/O Shri Sesar Chand, R/O V.P.O. Saach, Tehsil Pangi, District Chamba,

H.P. during year 1999 by the Executive Engineer, Killar Division, H.P.P.W.D. Killar

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

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

service benefits and compensation the above worker is entitled to from the above

employer?”

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

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

3.

Brief facts 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 June, 1994 who continuously worked till September, 1999 in IPH/HPPWD Sub Division,

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

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

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

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

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

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

1643

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

September, 1999 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

September, 1999 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 her. The petitioner also

alleges that she has remained unemployed ever since her illegal termination from month of

September, 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

September, 1999. She further prayed for reinstatement in service w.e.f. month of September, 1999

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 June,

1994 to September, 1999 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.

4.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 1999

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 24 and

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

25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically

alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu

thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the

work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also

contended that if petitioner had been terminated in 1999 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

1644

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

petitioner after her termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5.

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.

7. 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.

8.

From the contentions raised, following issues were framed on 12.8.2015 for

determination which are as under:

1.

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

1999 is/was improper and unjustified as alleged?

. .OPP.

2.

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

to?

. .OPP.

3.

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

. .OPR.

4.

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.60,000/- 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.

1645

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

11. Relationship of petitioner having been engaged as daily waged beldar by respondent on

muster roll basis in the month of 1994 who continuously worked till 1999 at HPPWD/IPH Sub

Division Sach is not in dispute. Admittedly, petitioner was engaged without any written order or

settlement of terms and conditions by the respondent. It is equally not in dispute that no written

order was passed while terminating service of the petitioner as claim of respondent remains that it

had not retrenched petitioner from service who had abandoned the job of her own and used to work

intermittently as per her own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from June, 1994 to September, 1999. 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 September, 1999 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

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 September, 1999.

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.

1646

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

worked for 132 days in the year 1994, 143 days in 1995, 159 days in 1996, 174.5 days in 1997,

154.5 days in 1998 and 125 days in 1999 and thus a total of her service in 1994 to 1999 in 6 years

she had worked for 888 days in her entire service period. Be it noticed that except the years 1994,

1995, 1996, 1998 and 1999 she had 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 1999 the petitioner had merely worked for 125 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-

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 September, 1999 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.

1647

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

termination in September, 1999, she had remained unemployed and was not earning anything

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

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

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

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

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

1648

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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,

1649

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 1999 and the industrial dispute was raised after

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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 appellantemployer within six weeks failing which

interest @ workman 9% p.a. will be payable.

[Paras 21 and 22]

1650

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 6 years and actually worked for 888 days as per

mandays chart on record and that the services of petitioner were disengaged in September, 1999

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

after about eight years i.e. demand notice was given on 11.9.2007. It is also pertinent to mention

here that petitioner on the date of filing claim petition was ageing 30 years who has sufficient spell

of life to work and earn her livelihood. Taking into consideration factors mentioned above in

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.60,000/- (Rupees

sixty 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

1651

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.60,000/- (Rupees sixty 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 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 93/2015

Date of Institution : 04.03.2015

Date of Decision : 21.03.2016

Shri Basant Singh s/o Shri Amar Chand, r/o Village Kuthal, P.O. Sach, 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

1652

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Basant Singh S/O Shri Amar

Chand, R/O Village Kuthal, P.O. Sach, Tehsil Pangi, District Chamba, H.P. before the

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

demand notice dated 08-08-2010 regarding his alleged illegal termination of service during

October, 2000 suffers from delay and laches? If not, Whether termination of the services of

Shri Basant Singh S/O Shri Amar Chand, R/O Village Kuthal, P.O. Sach, Tehsil Pangi,

District Chamba, H.P. during October, 2000 by the Executive Engineer, Killar Division,

H.P.P.W.D. Killar (Pangi), District Chamba, H.P. without complying with the provisions of

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

seniority, past service benefitsand compen sation the above worker is entitled to from the

above employer?”

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

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

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

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

month of May, 1987 who continuously worked till October, 2000 in HPPWD 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, 2000 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, 2000 when the services of petitioner

were terminated by way of oral order, he was not served with one month notice of retrenchment

and at the same time one month’s wages in lieu of notice period had also not been paid to him and

for said reason termination of the services of petitioner was prima facie illegal and unwarranted.

The claimant/petitioner claimed that he had spotless service record who never been charge-sheeted

for any act of indiscipline or negligence or his conduct and even at the time of verbal termination,

no charge-sheet had been served upon him and the at the same time, no opportunity of hearing had

been afforded to him. The petitioner also alleges that he has remained unemployed ever since his

illegal termination from month of October, 2000 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

1653

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

India, the petitioner prays for setting aside oral order of termination/retrenchment by the respondent

in the month of October, 2000. He further prayed for reinstatement in service w.e.f. month of

October, 2000 along-with back wages, seniority including continuity in service as petitioner has

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

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

between May, 1990 to October, 2000 be counted 160 days continuous service and regularization of

the service of petitioner w.e.f. 01.01.2004 having completed 8 years of service and per the policy of

HP Govt. in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of

H.P. and to any other relief petitioner is entitled.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1997 who remained engaged till 2000

but had worked intermittently as petitioner used to come and attend the work at his ownsweet 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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2000 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5.

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

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

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

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

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

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

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

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

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

evidence.

7. 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.

8. From the contentions raised, following issues were framed on 07.07.2015 for

determination:

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

October, 2000 is/was improper and unjustified as alleged?

. .OPP.

1654

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

to?

. .OPP.

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

6. 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.40,000/- 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 year 1997 who continuously worked till 2002 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from 1997 to October, 2000. He has also stated on oath that no

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

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

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

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

oath that respondent/department after terminating his services in October, 2000 by oral order had

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

1655

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

admitted that no departmental inquiry was initiated against petitioner even after October, 2000. No

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

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

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

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

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

rather he has claimed that intermittent breaks had been deliberately given to him by the respondent

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

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

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

established plea of abandonment.

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

worked for 166 days in the year 1997, 87 days in 1999 and 84 days in 2000 and thus a total of his

service in 1997 to 2000 in 3 years he had worked for 337 days in his entire service period. Be it

noticed that except years 1999 and 2000 petitioner had 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 2000 the petitioner had merely worked for 84 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

1656

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

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

petitioner was called upon to join for service at any time after October, 2000 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 1997 was

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

more than 160 days in preceding 8 years which entitled him for regularization of his 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, 2000, he had remained unemployed and was not earning anything

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

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

examination of the petitioner who has admitted that he had cultivatable land with him and also

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

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

from agricultural land as well as he 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 his agricultural and

manual pursuits, the same were sufficient to maintain him and his 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, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his 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

1657

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

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

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

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

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

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

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

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

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

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

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

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

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

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

(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer

deprives himself 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

1658

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

circumstances in which the workman was placed, firstly, as there was a criminal case

pending against him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his 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 he raised the demand regarding his 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 his

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

assurance given to the workman that he would be reinstated after his 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 he 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 2000 and the industrial dispute was raised after

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

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

1659

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

(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 Marketingcum- 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 his 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. His 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 appellantemployer 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 3 years and actually worked for 337 days as per

1660

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

mandays chart on record and that the services of petitioner were disengaged in October, 2000 who

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

about six years i.e. demand notice was given on 08.08.2010. It is also pertinent to mention here that

petitioner on the date of filing claim petition was ageing 37 years who has sufficient spell of life to

work and earn his livelihood. Taking into consideration factors mentioned above in pursuance to

judgments of Hon’ble Apex Court petitioner would not be entitled either for reinstatement or for

back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013

(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on

the matter of delay and laches is more or less settled law that claim of the petitioner could not be

solely declined on the ground of delay and laches. Similarly, judgment of Hon’ble Apex Court in

2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this

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

Court in previous judgment in the year 2013 i.e. Assistant Engineer, Rajasthan State

Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case. 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.40,000/- (Rupees

forty 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.40,000/- (rupees forty 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 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

1661

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 205/2015

Date of Institution : 04.05.2015

Date of Decision : 21.03.2016

Smt. Rusli w/o Shri Lal Chand, r/o Village and Post Office Sach, 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

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

adjudication:

“Whether the industrial dispute raised by the worker Smt. Rusli W/O Shri Lal Chand, R/O

Village and Post Office Sach, Tehsil Pangi, District Chamba, H.P. before the Executive

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

demand notice dated 08.08.2010 regarding her alleged illegal termination of service during

October, 2000 suffers from delay and latches? If not, Whether termination of the services of

Smt. Rusli W/O Shri Lal Chand, R/O Village and Post Office Sach, Tehsil Pangi, District

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

District Chamba, H.P. during October, 2000 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 worker is entitled to

from the above employer?”

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

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

3. Brief facts 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, 2000 in HPPWD and 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 andbecame

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

1662

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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, 2000 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, 2000 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 her. The petitioner also

alleges that she has remained unemployed ever since her illegal termination from month of

October, 2000 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,

2000. She further prayed for reinstatement in service w.e.f. month of October, 2000 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,

1992 to October, 2000 be counted 160 days continuous service and regularization of the service of

petitioner w.e.f. 01.01.2002 having completed 10 years of service and per the policy of HP Govt. in

pursuance to judgment of Hon’ble Apex Court titled as Mool Raj Upadhayay vs. State of H.P. and

to any other relief petitioner is entitled.

4.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1994 who remained engaged till 2000

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 her own will therefore serving of notice or pay in lieu

thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the

work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as

per direction of the Labour Court-cum Industrial Tribunal Dharamshala as harness case. It is also

contended that if petitioner had been terminated in 2000 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

1663

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

petitioner after her termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5. 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.

7. 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.

8. From the contentions raised, following issues were framed on 28.8.2015 for

determination which are as under:

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

October, 2000 is/was improper and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

. .OPR.

6. 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.40,000/- per operative

part of award.

REASONS FOR FINDINGS

ISSUES NO.1, 2 AND 4

1664

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 August, 1994 who continuously worked till October, 2000 at

HPPWD and 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 him.

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

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

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

District and remained engaged from August, 1994 to 2000. 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, 2000 by oral order had

engaged several co-workers whowere 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

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, 2000. 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

1665

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 29 days in the year 1994, 40.5 days in 1995, 11 days in 1997, 26 days in 1998, 28 days

in 1999, and 115 days in 2000 and thus a total of her service in 1994 to 2000 in 6 years she had

worked for 249.5 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 2000 the petitioner had

merely worked for 115 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-

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, 2000 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

1666

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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, 2000, she had remained unemployed and was not earning anything

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advocate General for the State of Haryana has placed reliance cannot be applied to the fact

situation of the case on hand, for the reason that the Labour Court has erroneously rejected the

reference without judiciously considering all the relevant factors of the case particularly the points

of dispute referred to it and answered the 2nd issue regarding the reference being barred by

limitation but not on the merits of the case. The said decision has no application to the fact situation

and also for the reason the catena of decisions of this Court referred to supra, wherein this Court

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

make reference by the appropriate government to the Labour Court/Industrial Tribunal for

adjudication of existing industrial dispute between workmen and the employer.

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

appellant; the Labour Court nevertheless has the power to mould the relief accordingly. At

the time of adjudication, if the dispute referred to the Labour Court is not adjudicated by it,

1667

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

1668

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 2000 and the industrial dispute was raised after

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum-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 appellantemployer within six weeks failing which

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

1669

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 6 years and actually worked for 249.5 days as per

mandays chart on record and that the services of petitioner were disengaged in October, 2000 who

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 8.8.2010. It is also pertinent to mention here

that petitioner on the date of filing claim petition was ageing 52 years who has sufficient spell of

life to work and earn her livelihood. Taking into consideration factors mentioned above in

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.40,000/- (Rupees

forty 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

1670

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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.40,000/- (Rupees forty 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 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

___________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 210/2015

Date of Institution : 25.05.2015

Date of Decision : 21.03.2016

Smt. Pyar Dei w/o Shri Ram Singh, r/o Village and Post Office Purthi, Tehsil Pangi,

District Chamba, H.P.

. .Petitioner.

Versus

Executive Engineer, Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District

Chamba, H.P.

. .Respondent.

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

For the Petitioner :

Sh. I.S. Jaryal, AR

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

1671

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

AWARD

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

adjudication:

“Whether the industrial dispute raised the worker Smt. Pyar Dei W/O Shri Ram Singh, R/O

Village and Post Office Purthi, Tehsil Pangi, District Chamba, H.P. before the Executive

Engineer, Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P.

vide demand notice dated-nil- received on 08.5.2012 regarding her alleged illegal

termination of service during September, 2003 suffers from delay and latches?? If not,

Whether termination of the services of Smt. Pyar Dei W/O Shri Ram Singh, R/O Village

and Post Office Purthi, Tehsil Pangi, District Chamba, H.P. by the Executive Engineer,

Killar Division, I.&P.H./H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P. during

September, 2003 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?”

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

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

3. Brief facts 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, 2000 who continuously worked till September, 2003 in IPH/HPPWD 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

September, 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

September, 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 her. The petitioner also

alleges that she has remained unemployed ever since her illegal termination from month of

September, 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

1672

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

September, 2003. She further prayed for reinstatement in service w.e.f. month of September, 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,

2000 to September, 2003 be counted 160 days continuous service and regularization of the service

of petitioner w.e.f. 01.01.2008 having completed 8 years of service and per the policy of HP Govt.

in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to

any other relief petitioner is entitled.

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

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

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

stating that petitioner was engaged as daily waged beldar in 2002 who remained engaged till 2003

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 her own will therefore serving of notice or pay in lieu

thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the

work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also

contended that if petitioner had been terminated in 2003 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.

5. 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.

7. 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.

8. From the contentions raised, following issues were framed on 28.10.2015 for

determination which are as under:

1. Whether the industrial dispute raised by petitioner vide demand notice Dated-nil- qua

her termination of service during year September, 2003 by respondent suffers from

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

. .OPP.

1673

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

September, 2003 is/was illegal and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

Relief.

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

Issue No.1 : No

Issue No.2 : Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief. :

Petition is partly allowed awarding compensation Rs.35,000/- per operative

part of award.

REASONS FOR FINDINGS

ISSUES NO.1, 2 AND 3

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

can be disposed of simultaneously without repetition of evidence.

11. Relationship of petitioner having been engaged as daily waged beldar by respondent on

muster roll basis in the month of May, 2002 who continuously worked till September, 2003 at

HPPWD 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 him.

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

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

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

District and remained engaged from 2002 to 2003. 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 September, 2003 by oral order had engaged

1674

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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 September, 2003.

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 thatpetitioner had

worked for 87 days in the year 2002 and 54 days in 2003 and thus a total of her service in 2002 to

2003 in 2 years she had worked for 141 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

2003 the petitioner had merely worked for 54 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

1675

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

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

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

petitioner was called upon to join for service at any time after September, 2003 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 2002

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 September, 2003, she had remained unemployed and was not earning anything

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1676

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

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

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

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

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

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

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

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

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

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

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

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

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

(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer

deprives herself of remedy available in law by delay itself, lapse of time results in losing the

remedy and the right as well. The delay would certainly be fatal if it has resulted in material

evidence relevant to adjudication being lost and rendered not available. However, we do not

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

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

1677

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

circumstances in which the workman was placed, firstly, as there was a criminal case

pending against her and secondly, the respondent had assured the workman that she would

be reinstated after her acquittal from the criminal case. Moreover, it is reasonable to

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

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

Thus, we do not consider the delay in raising the industrial dispute and referring the same to

the Labour Court for adjudication as gravely erroneous and it does not debar the workman

from claiming rightful relief from her employer.

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

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

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

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

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

cannot be denied to the workman merely on the ground of delay. The plea of delay if raised

by the employer is required to be proved as a matter of fact by showing the real prejudice

and not as a merely hypothetical defence. No reference to the labour court can be generally

questioned on the ground of delay alone. Even in a case where the delay in shown to be

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

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

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

appropriate cases direct the payment of part of the back wages instead of full back

wages.....” (Emphasis laid by the Court)

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

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

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

given to the workman that she would be reinstated after her acquittal from the criminal case,

the workman approached the conciliation officer and the State Government to make a

reference to the Labour Court for adjudication of the dispute with regard to the order of

dismissal passed by the respondent. Keeping in mind the date of acquittal of the appellant

and the date on which she approached the conciliation officer by raising the dispute, since

the respondent had not adhered to its assurance, the State Government had rightly referred

the dispute for its adjudication. Therefore it cannot be said that there was a delay on the part

of the appellant in raising the dispute and getting it referred to the Labour Court by the State

Government.

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

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

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

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

Labour Court was accepted erroneously by both the learned single Judge and the Division

Bench of the High Court by dismissing the Civil Writ Petition & the Letters Patent Appeal

without examining the case in its proper perspective, keeping in view the power of the State

Government under Section 10(1)(c) and the object and intendment of the Act. Not

adjudicating the existing industrial dispute on merits 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 2003 and the industrial dispute was raised after

1678

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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 appellantemployer 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

1679

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 2 years and actually worked for 141 days as per

mandays chart on record and that the services of petitioner were disengaged in September, 2003

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

after about eight years i.e. demand notice was given on 08.5.2012. It is also pertinent to mention

here that petitioner on the date of filing claim petition was ageing 35 years who has sufficient spell

of life to work and earn her livelihood. Taking into consideration factors mentioned above in

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.35,000/- (Rupees

thirty five 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 3 are answered accordingly.

ISSUE NO.4

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

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

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

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

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

petitioner and against the respondent.

RELIEF

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

the compensation of Rs.35,000/- (Rupees thirty five thousand only) to the petitioner in lieu of the

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

ofcompensation 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.

1680

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Announced in the open Court today this 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

____________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 98/2015

Date of Institution : 09.03.2015

Date of Decision : 21.03.2016

Shri Om Prakash Ram s/o Shri Suraj Ram, r/o V.P.O. Sach, 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 Shri Om Prakash Ram S/O Shri Suraj

Ram, R/O V.P.O. Sach, 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

23-07-2008 regarding his alleged illegal termination of service during year, 2000 suffers

from delay and laches? If not, Whether termination of the services of Shri Om Prakash Ram

S/O Shri Suraj Ram, R/O V.P.O. Sach, Tehsil Pangi, District Chamba, H.P. during year,

2000 by the Executive Engineer, H.P.P.W.D. Division Killar, Tehsil Pangi, District

Chamba, H.P., without complying with the provisions of the Industrial Disputes Act, 1947,

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

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

2.

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

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

3.

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

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

1681

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

month of July, 1996 who continuously worked till the year 2000 in HPPWD 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 2000 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 August, 2000 when the services of petitioner

were terminated by way of oral order, he was not served with one month notice of retrenchment

and at the same time one month’s wages in lieu of notice period had also not been paid to him and

for said reason termination of the services of petitioner was prima facie illegal and unwarranted.

The claimant/petitioner claimed that he had spotless service record who never been charge-sheeted

for any act of indiscipline or negligence or his conduct and even at the time of verbal termination,

no charge-sheet had been served upon him and the at the same time, no opportunity of hearing had

been afforded to him. The petitioner also alleges that he has remained unemployed ever since his

illegal termination from month of August, 2000 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 August, 2000. He further prayed for reinstatement in service w.e.f. month of

August, 2000 along-with back wages, seniority including continuity in service as petitioner has

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

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

between May, 1996 to August, 2000 be counted 160 days continuous service and regularization of

the service of petitioner having completed 8 years of service and per the policy of HP Govt. in

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

other relief petitioner is entitled.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1996 who remained engaged till 2000

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

willand 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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

1682

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2000 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

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

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

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

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

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

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

petitioner, respondent examined RW1 Shri 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.

7. 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.

8. From the contentions raised, following issues were framed on 28.08.2015 for

determination:

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

2000 is/was improper and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

8. 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.60,000/- per operative

part of award.

1683

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 year 1996 who continuously worked till 2000 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from 1996 to August, 2000. He has also stated on oath that no notice

under Section 25-F of the Act was given by the respondent before terminating his service and at the

same time no compensation in lieu thereof notice period was paid to him and thus his termination

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

all the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in 2000 by oral order had engaged several co-

workers who were junior to petitioner were retained in service. Not only this, the persons who were

junior to petitioner are stated to have been regularized in service and thus respondent had not

followed the mandate of Sections 25-G and 25-H of the Act which was obligatory on its part. The

case of petitioner also remains that he had served respondent with due diligence and had spotless

service record as respondent/department had never called any explanation or raised charge-sheet

against him but even while retrenching petitioner from service, no notice was given. The petitioner

has also explained reason for not approaching the authorities under Labour Act and thereafter

before this Tribunal, as there existed no road between Chamba town to Pangi Tehsil till 2011 and

petitioner had moved before the Labour Officer raising demand notice consequent upon which a

failure report was submitted and as the Labour Commissioner did not make reference for industrial

dispute raised by petitioner, the petitioner had moved before the Hon’ble High Court by filing CWP

where direction was passed for making reference to the Labour Court due to which delay had

occurred and same was satisfactorily explained.

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

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

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

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

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

admitted that no departmental inquiry was initiated against petitioner even after 2000. 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 crossexamination

1684

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

rather he has claimed that intermittent breaks had been deliberately given to him by the respondent

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

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

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

established plea of abandonment.

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

worked for 158 days in the year 1996, 47 days in 1997, 191.5 days in 1998, 283 days in 1999 and

47 days in 2000 and thus a total of his service in 1996 to 2000 in 5 years he had worked for 726.5

days in his entire service period. Be it noticed that except the years 1996, 1997 and 2000 he had

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 2000 the petitioner

had merely worked for 47 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-

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 August, 2000 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 1996 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

1685

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 him for regularization of his 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 August, 2000, he had remained unemployed and was not earning anything thereafter

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

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

examination of the petitioner who has admitted that he had cultivatable land with him and also

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

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

from agricultural land as well as he 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 his agricultural and

manual pursuits, the same were sufficient to maintain him and his 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, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his 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 his

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

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

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

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

1686

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 himself 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 him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his 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 he raised the

demand regarding his 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)

1687

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 his acquittal in

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

given to the workman that he would be reinstated after his 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 he 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 2000 and the industrial dispute was raised after

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum-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 his 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. His 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

1688

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 appellantemployer 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 5 years and actually worked for 726.5 days as per

mandays chart on record and that the services of petitioner were disengaged in August, 2000 who

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

about eight years i.e. demand notice was given on 23.7.2008. It is also pertinent to mention here

that petitioner on the date of filing claim petition was ageing 38 years who has sufficient spell of

life to work and earn his livelihood. Taking into consideration factors mentioned above in

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.60,000/- (Rupees

sixty 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

1689

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.60,000/- (rupees sixty 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 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

___________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 162/2015

Date of Institution : 11.04.2015

Date of Decision : 21.03.2016

Shri Dharam Diyal s/o Shri Bhim Singh, r/o Village and P.O. Rei, Tehsil Pangi, District

Chamba, H.P.

. .Petitioner.

Versus

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

H.P.

. .Respondent.

1690

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

AWARD

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

adjudication:

“Whether the industrial dispute raised by the worker Shri Dharam Diyal S/O Shri Bhim

Singh, R/O Village and P.O. Rei, Tehsil Pangi, District Chamba, H.P. before the Executive

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

demand notice dated 25.12.2011 regarding his alleged illegal termination of service during

November, 1997 suffers from delay and latches? If not, Whether termination of the services

of Shri Dharam Diyal S/O Shri Bhim Singh, R/O Village and P.O. Rei, Tehsil Pangi,

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

Tehsil Pangi, District Chamba, H.P. during November, 1997 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?”

2.

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

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

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

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

month of May, 1994 who continuously worked till November, 2005 in HPPWD Sub Division Sach.

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

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

continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes

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

that the services of petitioner had interrupted by way of intermittent/artificial breaks given by the

respondent/department deliberately and as such breaks are required to be counted as continuous

services for the purposes of calculation of 160 days so as for the applicability of Section 25-B of

the Act. The grievance of petitioner remains that respondent/department had terminated/disengaged

petitioner from daily wage service in the end of November, 2005 by an oral order without any

reason whereas several other co-workers who were junior to petitioner had been retained on muster

roll and thus the action of respondent/department was stated to be unjustified and malafide. It is

alleged that seniority list of daily wage workers working under the respondent had not been

circulated till termination/retrenchment of the petitioner and while retrenching the services of

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

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

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

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

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

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

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

record who never been charge-sheeted for any act of indiscipline or negligence or his conduct and

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

same time, no opportunity of hearing had been afforded to him. The petitioner also alleges that he

1691

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

has remained unemployed ever since his illegal termination from month of November, 2005 till the

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

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

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

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

of termination/retrenchment by the respondent in the month of November, 2005. He further prayed

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

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

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

and again during entire service of petitioner between May, 1994 to November, 2005 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.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1992 who remained engaged till 1997

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

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

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

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

denied. In so far as engagement of persons junior to petitioner mentioned at serial nos. 1 to 24 & 26

in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos. 25

& 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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 1997 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

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

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

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

6.

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

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC, 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.

7. 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.

1692

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

8. From the contentions raised, following issues were framed on 12.08.2015 for

determination:

1.

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

November, 1997 is/was improper and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

10. 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.50,000/- 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 year 1992 who continuously worked till 1997 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from 1992 to November, 1997. He has also stated on oath that no

1693

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

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

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

oath that respondent/department after terminating his services in November, 1997 by oral order had

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

admitted that no departmental inquiry was initiated against petitioner even after November, 1997.

No reason whatsoever has been assigned for such any action or omission on the part of respondent

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

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

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

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

intermittently rather he has claimed that intermittent breaks had been deliberately given to him by

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

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

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

that respondent had established plea of abandonment.

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

worked for 138 days in the year 1992, 142 days in 1993, 197 days in 1994, 88 days in 1995, 198

days in 1996 and 136 days in 1997 and thus a total of his service in 1992 to 1997 in 6 years he had

worked for 899 days in his entire service period. Be it noticed that except the years 1992, 1993,

1995 & 1997 he had 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

1997 the petitioner had merely worked for 136 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

1694

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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-

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 August, 2003 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 1992 was

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

more than 160 days in preceding 8 years which entitled him for regularization of his 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 November, 1997, he had remained unemployed and was not earning anything

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

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

examination of the petitioner who has admitted that he had cultivatable land with him and also

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

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

from agricultural land as well as he 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 his agricultural and

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

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

1695

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

employment. Since the petitioner had income from agriculture pursuits for his 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 his

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

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

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

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

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

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

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

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

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

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

Manager, Karnataka[4] it was held by this Court as follows“ 17. It was submitted on

behalf of the respondent that on account of delay in raising the dispute by the appellants the

High Court was justified in denying relief to the appellants. We cannot agree...... In Ratan

Chandra Sammanta and Ors. v. Union of India and Ors. (supra)1993 AIR SCW 2214, it was

held that a casual labourer retrenched by the employer deprives himself 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

1696

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 him and secondly, the respondent had

assured the workman that he would be reinstated after his 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 his 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 he raised the

demand regarding his 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 his acquittal in

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

given to the workman that he would be reinstated after his 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 he 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.

1697

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 1997 and the industrial dispute was raised after

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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 his termination was in violation osection 25-F of the I.D.Act-

Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during employment. His 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

1698

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 6 years and actually worked for 899 days as per

mandays chart on record and that the services of petitioner were disengaged in November, 1997

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

after about fourteen years i.e. demand notice was given on 25.12.2011. It is also pertinent to

mention here that petitioner on the date of filing claim petition was ageing 38 years who has

sufficient spell of life to work and earn his livelihood. Taking into consideration factors mentioned

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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 ofRs.50,000/- (Rupees fifty

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.50,000/- (rupees fifty 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.

1699

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

Announced in the open Court today this 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

__________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 94/2015

Date of Institution : 04.03.2015

Date of Decision : 21.03.2016

Shri Ram Kishan s/o Shri Charan Dass, r/o Village Chask, P.O. Seichu, 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 Shri Ram Kishan S/O Shri Charan

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

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

demand notice dated 18-08-2010 regarding his alleged illegal termination of services during

July, 2002 suffers from delay and laches? If not, Whether termination of the services of Shri

Ram Kishan S/O Shri Charan Dass, R/O Village Chask, P.O. Seichu, Tehsil Pangi, District

Chamba, H.P. during July, 2002 by the Executive Engineer, Killar Division, H.P.P.W.D.

Killar (Pangi), District Chamba, H.P., without complying with the provisions of the

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

seniority, past service benefits and compensation the above worker is entitled from the

above employer?”

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

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

1700

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

month of May, 1981 who continuously worked till July, 2002 in HPPWD 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 July, 2002 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 July, 2002 when the services of petitioner

were terminated by way of oral order, he was not served with one month notice of retrenchment

and at the same time one month’s wages in lieu of notice period had also not been paid to him and

for said reason termination of the services of petitioner was prima facie illegal and unwarranted.

The claimant/petitioner claimed that he had spotless service record who never been charge-sheeted

for any act of indiscipline or negligence or his conduct and even at the time of verbal termination,

no charge sheet had been served upon him and the at the same time, no opportunity of hearing had

been afforded to him. The petitioner also alleges that he has remained unemployed ever since his

illegal termination from month of July, 2002 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 July, 2002. He further prayed for reinstatement in service w.e.f. month of July,

2002 along-with back wages, seniority including continuity in service as petitioner has remained

unemployed since the date of his illegal termination. The petitioner has also prayed that period of

intermittent/fictional breaks given time and again during entire service of petitioner between May,

1981 to July, 2002 be counted 160 days continuous service and regularization of the service of

petitioner w.e.f. 01.01.1994 having completed 10 years of service and per the policy of HP Govt. in

pursuance to judgment of Hon’ble Apex Court titled as Mool Raj Upadhayay vs. State of H.P. and

to any other relief petitioner is entitled.

4.

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

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

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

stating that petitioner was engaged as daily waged beldar in 1982 who remained engaged till 2002

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

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

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

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

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

1701

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the

work of his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2002 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5.

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

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

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

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

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

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

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

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

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

evidence.

7. 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.

8. From the contentions raised, following issues were framed on 07.07.2015 for

determination:

1.

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

July, 2002 is/was improper and unjustified as alleged?

. .OPP.

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

to?

. .OPP.

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

12. 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

1702

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Relief. :

Petition is partly allowed awarding compensation Rs.40,000/- 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 year 1982 who continuously worked till 2002 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

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

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

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

District and remained engaged from 1982 to July, 2002. He has also stated on oath that no notice

under Section 25-F of the Act was given by the respondent before terminating his service and at the

same time no compensation in lieu thereof notice period was paid to him and thus his termination

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

all the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in July, 2002 by oral order had engaged

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

admitted that no departmental inquiry was initiated against petitioner even after July, 2002. No

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

1703

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

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

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

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

rather he has claimed that intermittent breaks had been deliberately given to him by the respondent

in the service record ofpetitioner 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 44 days in the year 1982, 24 days in 1983, 57 days in 1990, 27 days in 1995, 58 days in

1997, 27 days in 1998, 30 days in 2001 and 24.5 days in 2002 and thus a total of his service in 1982

to 2002 in 8 years he had worked for 291.5 days in his entire service period. Be it noticed that

petitioner had not worked for more than 160 days and as there is no reference from the Labour

Commissioner, Shimla on the point of artificial breaks, this court is to confine its findings only with

regard to alleged illegal termination. It is evident from mandays chart Ex. RW1/B that in the year

2004 the petitioner had merely worked for 48 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-

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 July, 2002 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 1982 was

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

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

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

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

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

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

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

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

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

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

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

1704

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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

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

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

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

more than 160 days in preceding 8 years which entitled him for regularization of his 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 July, 2002, he had remained unemployed and was not earning anything thereafter as

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

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

petitioner who has admitted that he had cultivatable land with him and also worked a private

labourer. Thus, plea of having remained not gainfully employed gets belied admission of petitioner

in cross-examination in which he had maintained that he had been earning from agricultural land as

well as he 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 his agricultural and manual pursuits, the same were sufficient to

maintain him and his 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, he

cannot be treated to be engaged in gainful employment. Since the petitioner had income from

agriculture pursuits for his 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 his retrenchment. Thus, applying the ratio of judgment

of Hon’ble Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully

employed and thus would be not entitled for back wages for the period he was out of job on being

terminated by the respondent.

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

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

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

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

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

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

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

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

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

erroneously rejected the reference without judiciously considering all the relevant factors of

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

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

1705

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 himself 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 him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his 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 he raised the

1706

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

demand regarding his 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 his acquittal in

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

given to the workman that he would be reinstated after his 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 he 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 2002 and the industrial dispute was raised after

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

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

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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

1707

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

240 days in calander year and his 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. His 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

appellantemployer 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 8 years and actually worked for 291.5 days as per

mandays chart on record and that the services of petitioner were disengaged in July, 2002 who

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

about eight years i.e. demand notice was given on 18.8.2010. It is also pertinent to mention here

that petitioner on the date of filing claim petition was ageing 51 years who has sufficient spell of

life to work and earn his livelihood. Taking into consideration factors mentioned above in

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

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

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

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

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.40,000/- (Rupees forty

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

1708

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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.40,000/- (rupees forty 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 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

____________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 161/2015

Date of Institution : 11.04.2015

Date of Decision : 21.03.2016

Shri Sesar Chand s/o Shri Moti, r/o V.P.O. Rei, Tehsil Pangi, District Chamba, H.P.

. .Petitioner.

Versus

1709

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 Shri Sesar Chand S/O Shri Moti, R/O

V.P.O. Rei, Tehsil Pangi, District Chamba, H.P. before the Executive Engineer, Killar

Division, H.P.P.W.D. Killar (Pangi), District Chamba, H.P. vide demand notice dated

25.12.2011 regarding his alleged illegal termination of service during August, 2003 suffers

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

Moti, R/O V.P.O. Rei, Tehsil Pangi, District Chamba, H.P. during August, 2003 by the

Executive Engineer, Killar Division, H.P.P.W.D. Killar (Pangi), District Chamba, H.P.

without complying with the provisions of the Industrial Disputes Act 1947, is legal and

justified? If not, what amount of back wages, seniority, past service benefits and

compensation the above worker is entitled to from the above employer?”

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts leading to institution of the present claim petition by the petitioner above

named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the

month of May, 1996 who continuously worked till August, 2003 in HPPWD 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 August, 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 August, 2003 when the services of petitioner

were terminated by way of oral order, he was not served with one month notice of retrenchment

and at the same time one month’s wages in lieu of notice period had also not been paid to him and

for said reason termination of the services of petitioner was prima facie illegal and unwarranted.

The claimant/petitioner claimed that he had spotless service record who never been charge-sheeted

for any act of indiscipline or negligence or his conduct and even at the time of verbal termination,

1710

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

no charge-sheet had been served upon him and the at the same time, no opportunity of hearing had

been afforded to him. The petitioner also alleges that he has remained unemployed ever since his

illegal termination from month of August, 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 August, 2003. He further prayed for reinstatement in service w.e.f. month of

August, 2003 along-with back wages, seniority including continuity in service as petitioner has

remained unemployed since the date of his illegal termination. The petitioner has also prayed that

period of intermittent/fictional breaks given time and again during entire service of petitioner

between May, 1996 to August, 2003 be counted 160 days continuous service and regularization of

the service of petitioner w.e.f. 01.01.2004 having completed 10 years of service and per the policy

of HP Govt. in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of

H.P. and to any other relief petitioner is entitled.

4. The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1996 who remained engaged till 2003

but had worked intermittently as petitioner used to come and attend the work at his own sweet will

and convenience. Relying upon the mandays chart, it has been categorically pleaded by the

respondent that petitioner had not completed 160 days in each calendar year as required for tribal

area of Pangi Tehsil. Allegations of fictional breaks given by respondent to the petitioner have been

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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2003 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.

Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality

besides allegation of violation of principle of ‘Last come First go’ was specifically denied.

6. In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC, 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.

7. 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.

1711

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

8. From the contentions raised, following issues were framed on 28.08.2015 for

determination:

1. Whether termination of services of the petitioner by the respondent during the year

August, 2003 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

13. Whether the claim petition is not maintainable in the present form as alleged? . .OPR.

14. 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.75,000/- 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 year 1996 who continuously worked till 2003 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and

reaffirming his pleadings as stipulated in claim petition. In his affidavit he has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged from 1996 to August, 2003. He has also stated on oath that no notice

1712

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

under Section 25-F of the Act was given by the respondent before terminating his service and at the

same time no compensation in lieu thereof notice period was paid to him and thus his termination

was illegal and void entitling petitioner benefit of reinstatement of service with full back wages and

all the other consequential service benefits. The petitioner has further alleged on oath that

respondent/department after terminating his services in August, 2003 by oral order had engaged

several co-workers who were junior to petitioner were retained in service. Not only this, the

persons who were junior to petitioner are stated to have been regularized in service and thus

respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was

obligatory on its part. The case of petitioner also remains that he had served respondent with due

diligence and had spotless service record as respondent/department had never called any

explanation or raised charge-sheet against him but even while retrenching petitioner from service,

no notice was given. The petitioner has also explained reason for not approaching the authorities

under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba

town to Pangi Tehsil till 2011 and petitioner had moved before the Labour Officer raising demand

notice consequent upon which a failure report was submitted and as the Labour Commissioner did

not make reference for industrial dispute raised by petitioner, the petitioner had moved before the

Hon’ble High Court by filing CWP where direction was passed for making reference to the Labour

Court due to which delay had occurred and same was satisfactorily explained.

13. In so far as plea of abandonment raised by respondent is concerned, the same merits

rejection in view of the fact that respondent had failed to produce any record by which it could be

established that whenever petitioner absented from his duty as also reflected in mandays chart Ex.

RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically

admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically

admitted that no departmental inquiry was initiated against petitioner even after August, 2003. No

reason whatsoever has been assigned for such any action or omission on the part of respondent in

not initiating any departmental proceedings or making correspondence calling upon the petitioner

to join service. This prima facie belies the stand taken by the respondent as abandonment has to be

proved like any other fact in issue. The petitioner, on the other hand, as PW1 in cross-examination

has specifically denied that he used to leave the job in between and attended the work intermittently

rather he has claimed that intermittent breaks had been deliberately given to him by the respondent

in the service record of petitioner so that petitioner did not complete 160 days of work as required

for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As such, in absence of

any specific and reliable evidence led by respondent, it would be unsafe to hold that respondent had

established plea of abandonment.

14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 174 days in the year 1996, 115 days in 1997, 122.5 days in 1998, 132 days in 1999, 114

days in 2000, 89.5 days in 2001, 86 days in 2002 and 86 days in 2003 and thus a total of his service

in 1996 to 2003 in 8 years he had worked for 919 days in his entire service period. Be it noticed

that except the years 1997 to 2003 he had 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 2003 the petitioner had merely worked for 86 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

1713

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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-

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 August, 2003 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 1996 was

terminated and even thereafter respondent omitted to afford opportunity to petitioner for

reemployment for work which also violates the provisions of Section 25-H of the Act. Ld.

Authorized Representative for petitioner has placed reliance upon judgment of Central Bank of

India vs. S. Satyam, 1996 (5) SCC 419 in which Hon’ble Apex Court has held that for the

applicability of Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner

to have worked for 240 days as in case of provisions of Section 25-F of the Act.

16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile

attempt to justify engagement of junior workers and their retention in service on the basis of orders

of Labour Court-cum-Industrial Tribunal as well as Hon’ble High Court of H.P. as reflected in Ex.

RW1/D1 to Ex RW1/D22. These judgments/orders have been gone through which revealed that

respondent had wrongly terminated the services of those claimant/petitioner and for said reasons

they were directed to be reinstated. Thus, plea that persons were directed to be appointed in

pursuance to awards/orders Ext. Rw1/D1 to Ex. RW1/D22 were primarily on the basis of court

orders would not defeat the claim of the petitioner as status of these person being junior to

petitioner does not get negatived. As such, even when petitioner is proved to have not worked for

more than 160 days in preceding 8 years which entitled him for regularization of his 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 August, 2003, he had remained unemployed and was not earning anything thereafter

as such was entitled for full back wages. Repudiating the arguments of ld. Authorized

Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross

examination of the petitioner who has admitted that he had cultivatable land with him and also

worked a private labourer. Thus, plea of having remained not gainfully employed gets belied

admission of petitioner in cross-examination in which he had maintained that he had been earning

from agricultural land as well as he 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 his agricultural and

manual pursuits, the same were sufficient to maintain him and his family. It is thus held that

1714

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his 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 his

retrenchment. Thus, applying the ratio of judgment of Hon’ble Apex Court (2007 supra), it may not

be erroneous to hold that petitioner was gainfully employed and thus would be not entitled for back

wages for the period he was out of job on being terminated by the respondent.

18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate

and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.

Authorized Representative for the petitioner has relied upon the judgment of Hon’ble Apex Court

titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab

IC 4266 (SC) and the relevant paras of the judgment are produced below for reference:

“12. Therefore, in our considered view, the observations made by this Court in the

Rajasthan State Agriculture Marketing Board case (supra) upon which the learned

Additional Advocate General for the State of Haryana has placed reliance cannot be applied

to the fact situation of the case on hand, for the reason that the Labour Court has

erroneously rejected the reference without judiciously considering all the relevant factors of

the case particularly the points of dispute referred to it and answered the 2nd issue regarding

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour Court is

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,

Karnataka[4] it was held by this Court as follows-

“17. It was submitted on behalf of the respondent that on account of delay in raising the

dispute by the appellants the High Court was justified in denying relief to the appellants.

We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.

(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer

deprives himself of remedy available in law by delay itself, lapse of time results in losing

1715

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his 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 he raised the demand regarding his 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 his acquittal in

the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance

given to the workman that he would be reinstated after his 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 he 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

1716

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 2003 and the industrial dispute was

raised after several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR

for the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble

High Court of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising

dispute may be considered by court at the time of granting final relief however in various

other judgments even longer delay has been condoned. In Divisional Manager, HPFC &

another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was

condoned besides Hon’ble High Court has held that principle of Limitation Act is not

applicable to the industrial dispute. Similar view was taken by Hon’ble Apex Court in

Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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 his 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. His 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 appellantemployer 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

1717

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 8 years and actually worked for 919 days as per

mandays chart on record and that the services of petitioner were disengaged in August, 2003 who

worked as non skilled worker and had raised industrial dispute by issuance of demand notice after

about eight years i.e. demand notice was given on 25.12.2011. It is also pertinent to mention here

that petitioner on the date of filing claim petition was ageing 51 years who has sufficient spell of

life to work and earn his livelihood. Taking into consideration factors mentioned above in

pursuance to judgments of Hon’ble Apex Court petitioner would not be entitled either for

reinstatement or for back wages but compensation a lump-sum would be appropriate relief in view

of judgment 2013 (139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative

for petitioner on the matter of delay and laches is more or less settled law that claim of the

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.75,000/- (Rupees

seventy five 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.75,000/- (rupees seventy five 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.

1718

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

____________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 201/2015

Date of Institution : 04.05.2015

Date of Decision : 21.03.2016

Shri Param Dass s/o Shri Tihru Ram, r/o Village Kuthal, P.O. Sach, Tehsil Pangi, District

Chamba, H.P.

. .Petitioner.

Versus

The Executive Engineer, Killar Division, H.P.P.W.D. Killar,Tehsil Pangi, District Chamba,

H.P.

. .Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. I.S. Jaryal, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

The reference given below has been received from the appropriate Government for

adjudication:

“Whether the industrial dispute raised by the worker Shri Param Dass S/O Shri Tihru Ram,

R/O Village Kuthal, P.O. Sach, Tehsil Pangi, District Chamba, H.P. before the Executive

Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi, District Chamba, H.P. vide

demand notice dated 08.08.2010 regarding his alleged illegal termination of service during

October, 2001 suffers from delay and latches? If not, Whether termination of the services of

Shri Param Dass S/O Shri Tihru Ram, R/O Village Kuthal, P.O. Sach, Tehsil Pangi, District

Chamba, H.P. by the Executive Engineer, Killar Division, H.P.P.W.D. Killar, Tehsil Pangi,

District Chamba, H.P. during October, 2001 without complying the provisions of the

Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,

1719

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

seniority, past service benefits and compensation the above aggrieved workman is entitled

to from the above employer?”

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts leading to institution of the present claim petition by the petitioner above

named reveal that he had been initially engaged as daily waged beldar on muster roll basis in the

month of July, 1997 who continuously worked till September, 2004 in HPPWD 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

September, 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

September, 2004 when the services of petitioner were terminated by way of oral order, he was not

served with one month notice of retrenchment and at the same time one month’s wages in lieu of

notice period had also not been paid to him and for said reason termination of the services of

petitioner was prima facie illegal and unwarranted. The claimant/petitioner claimed that he had

spotless service record who never been charge-sheeted for any act of indiscipline or negligence or

his conduct and even at the time of verbal termination, no charge-sheet had been served upon him

and the at the same time, no opportunity of hearing had been afforded to him. The petitioner also

alleges that he has remained unemployed ever since his illegal termination from month of

September, 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

September, 2004. He further prayed for reinstatement in service w.e.f. month of September, 2004

along-with back wages, seniority including continuity in service as petitioner has remained

unemployed since the date of his illegal termination. The petitioner has also prayed that period of

intermittent/fictional breaks given time and again during entire service of petitioner between July,

1997 to September, 2004 be counted 160 days continuous service and regularization of the service

of petitioner w.e.f. 01.01.2005 having completed 8 years of service and per the policy of HP Govt.

in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to

any other relief petitioner is entitled.

4. The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1997 who remained engaged till 2004

but had worked intermittently as petitioner used to come and attend the work at his own sweet will

1720

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 his own sweet will and the persons mentioned in para no.7 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as haraness case. It is also

contended that if petitioner had been terminated in 2004 he would have definitely raised industrial

dispute immediately and that after ten years petitioner is stated to be agitating the matter which is

bad on account of delay and laches. It is also contended that since the services of petitioner had not

been terminated by the respondent, question of issuance of notice or wages in lieu thereof did not

arise and at the same time, there was no necessity for charge-sheet or issuing any notice of

petitioner after his termination. It is contended that petitioner was agriculturist and gainfully

employed and was thus not entitled for back wages.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.

Further asserted that provisions of Limitation Act did not eclipse the claim of petitioner in totality

besides allegation of violation of principle of ‘Last come First go’ was specifically denied.

6. In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B to PW1/M 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.

7. 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.

8. 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, 2001 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

15. Whether the claim petition is not maintainable in the present form as alleged?

. .OPR.

16. 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:—

1721

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Issue No.1 : Yes

Issue No.2 : Discussed

Issue No.3 : No

Issue No.4 : No

Relief. :

Petition is partly allowed awarding compensation Rs.50,000/- per operative

part of award.

REASONS FOR FINDINGS

ISSUES NO.1, 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 year 1997 who continuously worked till 2004 at HPPWD 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 his own and used to work

intermittently as per his own wish and convenience. Admittedly, the reference of appropriate govt.

does not relate to plea of fictional breaks but only with regard to petitioner’s termination from

service. In the backdrop of foregoing admitted facts on record, claim of petitioner requires to be

adjudicated with a view to determine if petitioner is entitled for relief of reinstatement and back

wages along-with seniority and past service benefits and compensation as claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and

reaffirming his pleadings as stipulated in claim petition. In his affidavit he has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged from 1997 to September, 2004. He has also stated on oath that no

notice under Section 25-F of the Act was given by the respondent before terminating his service

and at the same time no compensation in lieu thereof notice period was paid to him and thus his

termination was illegal and void entitling petitioner benefit of reinstatement of service with full

back wages and all the other consequential service benefits. The petitioner has further alleged on

oath that respondent/department after terminating his services in September, 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 he had served respondent with due

diligence and had spotless service record as respondent/department had never called any

explanation or raised charge-sheet against him but even while retrenching petitioner from service,

no notice was given. The petitioner has also explained reason for not approaching the authorities

under Labour Act and thereafter before this Tribunal, as there existed no road between Chamba

town to Pangi Tehsil till 2011 and petitioner had moved before the Labour Officer raising demand

notice consequent upon which a failure report was submitted and as the Labour Commissioner did

not make reference for industrial dispute raised by petitioner, the petitioner had moved before the

Hon’ble High Court by filing CWP where direction was passed for making reference to the Labour

Court due to which delay had occurred and same was satisfactorily explained.

1722

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

13. In so far as plea of abandonment raised by respondent is concerned, the same merits

rejection in view of the fact that respondent had failed to produce any record by which it could be

established that whenever petitioner absented from his duty as also reflected in mandays chart Ex.

RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically

admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically

admitted that no departmental inquiry was initiated against petitioner even after September, 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 he used to leave the job in between and attended the work

intermittently rather he has claimed that intermittent breaks had been deliberately given to him by

the respondent in the service record of petitioner so that petitioner did not complete 160 days of

work as required for Pangi Tehsil area and also for applicability of Section 25-B of the Act. As

such, in absence of any specific and reliable evidence led by respondent, it would be unsafe to hold

that respondent had established plea of abandonment.

14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 28 days in the year 1997, 121 days in 1998, 140 days in 1999, 116 days in 2000 and 73

days in 2001 and thus a total of his service in 1997 to 2001 in 5 years he had worked for 478 days

in his entire service period. Be it noticed that petitioner had not worked for more than 160 days and

as there is no reference from the Labour Commissioner, Shimla on the point of artificial breaks, this

court is to confine its findings only with regard to alleged illegal termination. It is evident from

mandays chart Ex. RW1/B that in the year 2001 the petitioner had merely worked for 73 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-

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 August, 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 1997 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.

1723

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile

attempt to justify engagement of junior workers and their retention in service on the basis of orders

of Labour Court-cum-Industrial Tribunal as well as Hon’ble High Court of H.P. as reflected in Ex.

RW1/D1 to Ex RW1/D22. These judgments/orders have been gone through which revealed that

respondent had wrongly terminated the services of those claimant/petitioner and for said reasons

they were directed to be reinstated. Thus, plea that persons were directed to be appointed in

pursuance to awards/orders Ext. Rw1/D1 to Ex. RW1/D22 were primarily on the basis of court

orders would not defeat the claim of the petitioner as status of these person being junior to

petitioner does not get negatived. As such, even when petitioner is proved to have not worked for

more than 160 days in preceding 8 years which entitled him for regularization of his 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, 2001, he had remained unemployed and was not earning anything

thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized

Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross

examination of the petitioner who has admitted that he had cultivatable land with him and also

worked a private labourer. Thus, plea of having remained not gainfully employed gets belied

admission of petitioner in cross-examination in which he had maintained that he had been earning

from agricultural land as well as he 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 his agricultural and

manual pursuits, the same were sufficient to maintain him and his 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, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his 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 his

retrenchment. Thus, applying the ratio of judgment of Hon’ble Apex Court (2007 supra), it may not

be erroneous to hold that petitioner was gainfully employed and thus would be not entitled for back

wages for the period he 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

1724

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

erroneously rejected the reference without judiciously considering all the relevant factors of

the case particularly the points of dispute referred to it and answered the 2nd issue regarding

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour Court is

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District

Manager, Karnataka[4] it was held by this Court as follows-

“17. It was submitted on behalf of the respondent that on account of delay in raising the

dispute by the appellants the High Court was justified in denying relief to the appellants.

We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India and Ors.

(supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by the employer

deprives himself 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 him and secondly, the respondent had assured the workman that he would

be reinstated after his 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 his 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

1725

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 he raised the

demand regarding his 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 his acquittal in

the criminal case. Thereafter, upon failure of the respondent in adhering to the assurance

given to the workman that he would be reinstated after his 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 he 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 2001 and the industrial dispute was raised after

several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR for the petitioner

has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court of H.P.

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum- 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

1726

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 his 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. His 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 appellantemployer 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 5 years and actually worked for 478 days as per

mandays chart on record and that the services of petitioner were disengaged in October, 2001 who

worked as non skilled worker and had raised industrial dispute by issuance of demand notice after

about six years i.e. demand notice was given on 27.9.2010. It is also pertinent to mention here that

petitioner on the date of filing claim petition was ageing 47 years who has sufficient spell of life to

work and earn his livelihood. Taking into consideration factors mentioned above in pursuance to

judgments of Hon’ble Apex Court petitioner would not be entitled either for reinstatement or for

back wages but compensation a lump-sum would be appropriate relief in view of judgment 2013

(139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative for petitioner on

the matter of delay and laches is more or less settled law that claim of the petitioner could not be

solely declined on the ground of delay and laches. Similarly, judgment of Hon’ble Apex Court in

2014 titled as Raghubir Singh’s case also does not come to the rescue of the petitioner as in this

judgment also the Hon’ble Apex Court has reiterated the mandate as given by the Hon’ble Apex

1727

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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.50,000/- (Rupees

fifty 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.50,000/- (rupees fifty 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 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

__________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 158/2015

Date of Institution : 11.04.2015

Date of Decision : 21.03.2016

1728

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Smt. Maghi w/o Shri Bhim Ram, r/o V.P.O. Rei, Tehsil Pangi, District Chamba, H.P.

. . Petitioner.

Versus

The Executive Engineer, H.P.P.W.D. Division 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. Maghi W/O Shri Bhim Ram, R/O

V.P.O. Rei, Tehsil Pangi, District Chamba, H.P. before the Executive Engineer, Killar

Division, H.P.P.W.D. Killar (Pangi), District Chamba, H.P. vide demand notice dated 25-12

2011 regarding her alleged illegal termination of service during September, 2003 suffers

from delay and laches? If not, Whether termination of the services of Smt. Maghi W/O Shri

Bhim Ram, R/O V.P.O. Rei, Tehsil Pangi, District Chamba, H.P. during September, 2003

by the Executive Engineer, Killar Division, H.P.P.W.D. Killar (Pangi), District Chamba,

H.P. without complying with the provisions of the Industrial Disputes Act, 1947, is legal

and justified? If not, what amount of back wages, seniority, past service benefits and

compensation the above worker is entitled to from the above employer?”

2.

On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3.

Brief facts 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, 1996 who continuously worked till September, 2003 in HPPWD Sub Division,

Sach. Averments made in the petition further revealed that petitioner had worked for 160 days in

each calendar year as prescribed for tribal area of Pangi Tehsil District Chamba and became

eligible for continuous service envisaged under statutory provisions of Section 25- B of the

Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for brevity). Averments made in

the petition revealed that the services of petitioner had interrupted by way of intermittent/artificial

breaks given by the respondent/department deliberately and as such breaks are required to be

counted as continuous services for the purposes of calculation of 160 days so as for the

applicability of Section 25-B of the Act. The grievance of petitioner remains that

respondent/department had terminated/disengaged petitioner from daily wage service in the end of

September, 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

1729

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

September, 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 her. The petitioner also

alleges that she has remained unemployed ever since her illegal termination from month of

September, 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

September, 2003. She further prayed for reinstatement in service w.e.f. month of September, 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,

1996 to September, 2003 be counted 160 days continuous service and regularization of the service

of petitioner w.e.f. 01.01.2004 having completed 8 years of service and per the policy of HP Govt.

in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to

any other relief petitioner is entitled.

4.

The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1996 who remained engaged till 2003

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 24 and

26 in para no. 4 of the claim petition were appointed as per order of Labour Court and at serial nos.

25 & 27 as harness case. On the plea of termination of service of petitioner, respondent specifically

alleges that petitioner had left the job at her own will therefore serving of notice or pay in lieu

thereof was not required. Reiterating its stand respondent has maintained that petitioner had left the

work of her own sweet will and the persons mentioned in para no.4 are stated to have engaged as

per direction of the Labour Court-cum-Industrial Tribunal Dharamshala as harness case. It is also

contended that if petitioner had been terminated in 2003 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.

5. 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,

1730

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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.

7. 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.

8. From the contentions raised, following issues were framed on 12.8.2015 for

determination which are as under:

1. Whether termination of services of the petitioner by the respondent during the year

September, 2003 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

7. Whether the claim petition is not maintainable in the present form as alleged? . .OPR.

8. 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.70,000/- 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, 1996 who continuously worked till September, 2003 at

HPPWD Sub Division Sach is not in dispute. Admittedly, petitioner was engaged without any

written order or settlement of terms and conditions by the respondent. It is equally not in dispute

that no written order was passed while terminating service of the petitioner as claim of respondent

remains that it had not retrenched petitioner from service who had abandoned the job of her own

and used to work intermittently as per her own wish and convenience. Admittedly, the reference of

1731

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

appropriate govt. does not relate to plea of fictional breaks but only with regard to petitioner’s

termination from service. In the backdrop of foregoing admitted facts on record, claim of petitioner

requires to be adjudicated with a view to determine if petitioner is entitled for relief of

reinstatement and back wages along-with seniority and past service benefits and compensation as

claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and

reaffirming her pleadings as stipulated in claim petition. In her affidavit she has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged from September, 1996 to 2003. 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 September, 2003 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

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 September, 2003.

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 161 days in the year 1996, 107 days in 1997, 136 days in 1998, 134 days in 2000, 52

days in 2001, 69 days in 2002, 51 days in 2002 and 57 days in 2003 and thus a total of her service

in 1996 to 2003 in 8 years she had worked for 767 days in her entire service period. Be it noticed

that except 1996 to 2003 she had 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

1732

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

findings only with regard to alleged illegal termination. It is evident from mandays chart Ex.

RW1/B that in the year 2003 the petitioner had merely worked for 57 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-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 September, 2003 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 1996

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 September, 2003, she had remained unemployed and was not earning anything

thereafter as such was entitled for full back wages. Repudiating the arguments of ld. Authorized

Representative of petitioner, ld. Dy. D.A. for the State has taken this court through cross

examination of the petitioner who has admitted that she had cultivatable land with her and also

worked a private labourer. Thus, plea of having remained not gainfully employed gets belied

admission of petitioner in cross-examination in which she had maintained that she had been earning

from agricultural land as well as she has been working as daily wager privately. Reliance has been

1733

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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

be erroneous to hold that petitioner was gainfully employed and thus would be not entitled for back

wages for the period she was out of job on being terminated by the respondent.

18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate

and explained delay which disentitles petitioner relief claimed for by him. On the other hand, ld.

Authorized Representative for the petitioner has relied upon the judgment of Hon’ble Apex Court

titled Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab

IC 4266 (SC) and the relevant paras of the judgment are produced below for reference:

“12. Therefore, in our considered view, the observations made by this Court in the

Rajasthan State Agriculture Marketing Board case (supra) upon which the learned

Additional Advocate General for the State of Haryana has placed reliance cannot be applied

to the fact situation of the case on hand, for the reason that the Labour Court has

erroneously rejected the reference without judiciously considering all the relevant factors of

the case particularly the points of dispute referred to it and answered the 2nd issue regarding

the reference being barred by limitation but not on the merits of the case. The said decision

has no application to the fact situation and also for the reason the catena of decisions of this

Court referred to supra, wherein this Court has categorically held that the provisions of

Limitation Act under Article 137 has no application to make reference by the appropriate

government to the Labour Court/Industrial Tribunal for adjudication of existing industrial

dispute between workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour Court is

not adjudicated by it, it does not mean that the dispute ceases to exist. The appropriate

government in exercise of its statutory power under Section 10(1)(c) of the Act can refer the

industrial dispute, between the parties, at any time, to either the jurisdictional Labour

Court/Industrial Tribunal as interpreted by this Court in the Avon Services case referred to

supra. Therefore, the State Government has rightly exercised its power under Section

10(1)(c) of the Act and referred the points of dispute to the Labour Court as the same are in

accordance with the law laid down by this Court in Avon Services & Sapan Kumar Pandit

cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District

Manager, Karnataka[4] it was held by this Court as follows-

1734

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

“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

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

1735

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 2003 and the industrial dispute was raised after

several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR for the petitioner

has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court of H.P.

(Bhatag Ram’s case) in which it has been held that delay in raising dispute may be considered by

court at the time of granting final relief however in various other judgments even longer delay has

been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007

(HP) 1160, delay of more than 10 years was condoned besides Hon’ble High Court has held that

principle of Limitation Act is not applicable to the industrial dispute. Similar view was taken by

Hon’ble Apex Court in Ajayab Singh vs. Sirhind Co-operative Marketingcum-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 appellantemployer 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)

1736

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

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 8 years and actually worked for 767 days as per

mandays chart on record and that the services of petitioner were disengaged in September, 2003

who worked as non skilled worker and had raised industrial dispute by issuance of demand notice

after about eight years i.e. demand notice was given on 25.12.2011. It is also pertinent to mention

here that petitioner on the date of filing claim petition was ageing 40 years who has sufficient spell

of life to work and earn her livelihood. Taking into consideration factors mentioned above in

pursuance to judgments of Hon’ble Apex Court petitioner would not be entitled either for

reinstatement or for back wages but compensation a lump-sum would be appropriate relief in view

of judgment 2013 (139) FLR 25 (SC). The judgments relied upon by ld. Authorized Representative

for petitioner on the matter of delay and laches is more or less settled law that claim of the

petitioner could not be solely declined on the ground of delay and laches. Similarly, judgment of

Hon’ble Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of

the petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case.

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.70,000/- (Rupees

seventy 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.70,000/- (Rupees seventy thousand only) to the petitioner in lieu of the

1737

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

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 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

___________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 136/2015

Date of Institution : 21.03.2015

Date of decision : 21.03.2016

Shri Nand Lal s/o Shri Bachanu Ram, r/o Village and P.O. Nakrana, Tehsil Shree Naina

Devi Ji, District Bilaspur, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1.

The following reference has been received from the appropriate Government for

adjudication:

“Whether the termination of the services of Shri Nand Lal S/O Shri Bachanu Ram, R/O

Village and Post Office Nakrana, Tehsil Shree Naina Devi Ji, District Bilaspur, H.P. by the

1738

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P. w.e.f.

01.01.2009 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

relief the above workman is entitled to?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in 2008 by Range Forest Wild Life Shri Naina

Deviji, District Bilaspur, H.P. where he continued to worked till January, 2009. The grievance of

petitioner remains that respondent had without any rhyme and reason and serving any notice orally

terminated his services in January, 2009. It is specifically alleged that ignoring the rights of

claimant/petitioner respondent had not prepared seniority list of daily

waged workers as on 31st July, 2010 and did not reflect petitioner’s name in the seniority list

according to which several workers namely S/Sh. Ashok Kumar, Madan Lal, Rajesh Kumar,

Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal Singh, Pratap Chand, Ravinder Kumar, Bantu

Singh, Sant Ram, Pankaj Walia, Vijay Kumar, Rajesh Kumar, Naresh Kumar, Aman Kumar,

Praveen Kumar and Surinder Kumar were still employed and were junior to petitioner. Thus,

alleging to have not followed the principle of ‘last come first go’ envisaged under Section 25-H and

25-G of the Industrial Disputes Act, 1947 services of petitioner had been disengaged. At the same

time, provisions of Section 25-F too had not been followed which was also an unfair labour

practice as petitioner had rendered service of 240 days immediately prior to his termination. The

petitioner further alleges that he was unemployed who had no source of income of livelihood.

Accordingly, petitioner prays for reinstatement with full back wages and all consequential benefits

admissible to him. 4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits admitted that petitioner had been engaged initially in July,

2008 in Shri Naina Deviji Wild Life Range as casual labourer where seasonal work was being

carried out through volunteers and local villagers and that petitioner was never engaged as daily

wager so question of retrenching him from work did not arise. It is also contended that petitioner

had been attending the work intermittently as was clear from mandays chart on record. It is

specifically alleged that petitioner was not attending the work regularly rather he visited site of

work as per his own convenience and that no fictional breaks had ever been given by the

respondent/department. It also remains the case of respondent that the work which was being

carried out in Shri Naina Deviji Wild Life was seasonal work and therefore the question of working

as daily wager did not arise. It is admitted that name of the petitioner did not figure in the seniority

list due to the reason that petitioner was employed as casual labourer and had not worked

continuously for 240 days in a year. It has been emphatically denied that petitioner had worked for

240 days in any calendar year immediately preceding his termination and for said reason

respondent cannot be stated to have violated Section 25-F of the Industrial Disputes Act. Since the

petitioner himself has allegedly abandoned the work who had not completed 240 days, there was

not requirement of showing or reflecting his name in the seniority list or serving any notice under

Section 25-F of the Industrial Disputes Act. The petitioner is stated to have been gainfully

employed as he himself engaged in agricultural work which was cultivable land wherefrom

petitioner earned his livelihood. Accordingly, petition was sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

6.

To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of mandays chart of Sh. Sundar Ram, Ex.

PW1/C copy of mandays chart of Sh. Garja Ram, Ex. PW1/D copy of seniority list, Ex. PW1/E

1739

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

copy of CWP No. 2261/2014 decided on 18.10.2004 and closed evidence. On the other hand,

repudiating the evidence led by petitioner, respondent had examined Shri H.K. Sarwata, Divisional

Forest Officer, Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex. RW1/A,

Mandays chart Ex. RW1/B, Seniority list Ex. RW1/C, copy of letter dated 11.12.1997 Ex. RW1/D,

copy of letter dated 9.5.2000 Ex. RW1/E and closed evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 16.9.2015 for

determination which are as under:

1. Whether termination of the services of the petitioner by the respondent w.e.f.

01.01.2009 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3. Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Discussed.

Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflects total number of days for petitioner worked i.e. from July, 2008 to

December, 2008. As per this document on record, petitioner is shown to have worked for 46 days in

the month of w.e.f. July, 2008 to December, 2008 and thereafter did not work with the respondent.

A bare glance on this document would reveal that petitioner had not worked 240 days w.e.f. July,

2008 to December, 2008 in this year it can be seen from mandays chart aforestated that petitioner

had not worked for 240 days as petitioner is shown to have worked for 46 days only. As such, when

petitioner had totally worked for 46 days, plea of having worked for 240 days gets falsified and

thus provisions of Section 25-F of Industrial Disputes Act are not attracted.

12. In so far as violation of Section 25-G and Section 25-H of the Industrial Disputes Act

are concerned, it would be relevant to mention here that Ex. PW1/C and Ex. RW1/C are the same

1740

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

document i.e. seniority list of the daily wagers from 1999 onwards to 31.7.2010 in respect of Wild

Life Division Hamirpur which showed name of petitioner figuring at serial no.19. In the year 2008,

petitioner is shown to have worked for 46 days. After the name of claimant/petitioner this seniority

list referred to above further stipulates names of workers upto serial no.38 who are stated to be

junior to petitioner and retained in service while the services of the petitioner had been retrenched.

The fact that about 18 workers whose names are enumerated in para no.5 of the affidavit Ex.

PW1/A of petitioner were junior and still employed has not been repudiated by Ld. Dy. D.A. while

cross-examining the petitioner assumes significance. Not only this, as per mandays chart Ex.

PW1/B Sunder Ram is shown to have been engaged in 2009 who continued to work in 2013.

Similarly, Ex. PW1/C in the mandays chart of Garja Ram who is shown to have engaged by issuing

muster roll in 2009 who too is shown to have worked till upto 15.6.2013. Abovestated documents

clearly show that both these daily waged workmen were appointed after the year of termination in

January, 2009. On the other hand, respondent RW1 Shri H.K. Sarwata in his cross-examination

admitted that the workers mentioned in Seniority list Ex. P1 shows that the workers figuring at

serial nos. 8,9,19, 20 and 21 were junior to the petitioner. He further admitted that no show cause

notice was issued to the petitioner when he had left the job. Although, admitted that the petitioner

was engaged in the year 2008. Minor scrutiny of testimony of RW1 would further reveal that

petitioner had been initially engaged in Hamirpur Forest Division whereas petitioner was factually

initially engaged by Forest Range Officer, Shri Naina Deviji but this aspect ceases to have

significance on the merits of case in as much as respondent in its reply nowhere alleged about

bifurcation of Division of Hamirpur Division and Bilaspur and preparation of separate seniority list.

Thus, arguments of Ld. Dy. D.A. are not supported with corresponding pleadings and evidence on

record. In Mackinon Machenize & Company Ltd. vs. Mackinon Employees Union, reported in

2015 LLR 337 Hon’ble Apex Court has in unambiguous terms has held that non preparation of

seniority list or non displaying of seniority list is breach of Section 25-G of the Industrial

Disputes Act. In the case in hand, omission of respondent in preparation seniority list of Bilaspur

Division and failing to reflect his name in said seniority list by respondent clearly violates Section

25-G of Industrial Disputes Act.

13. As has come in the evidence of the parties that in the seniority list as on 31.12.2014

relating to Bilaspur Division, the name of petitioner has not been mentioned in the list Ex. P1

prepared by respondent himself clearly vitiate of provisions of Section 25-G of the Industrial

Disputes Act in view of law laid down by the Hon’ble Apex Court (2015 supra). Otherwise also,

from testimony of petitioner coupled with seniority list, an irresistible inference which may be

drawn is that several junior persons whose names were mentioned in para no.5 of affidavit of

petitioner were still working with the respondent whereas the services of petitioner were illegally

terminated without serving any notice by the respondent. Thus, principle of ‘Last come First

go’envisaged under Section 25-G was not followed. It is settled law for applicability of Section 25-

G of Industrial Disputes Act that it is not necessary that claimant/petitioner ought to have

completed 240 days in a year as has been held by the Hon’ble Apex Court in Central Bank of

India vs. S. Satyam, 1996 (5) SCC 419. Similarly, while recruiting or engaging new hands even

petitioner was not afforded an opportunity to work rather respondent in his reply admitted that he

failed to enter the name of the petitioner as stated above. Be it noticed that respondent has made

inconsistent plea of work of the Wild Life Bilaspur Division was stated to be seasonal in nature and

the other plea that petitioner himself abandoned the job. The case of petitioner remain that the

petitioner abandoned the job of his own who used to attend the work intermittently of his own

whims and convenience and respondent has not issued any notice calling upon the petitioner to join

of his duties moreso when petitioner had not completed 240 days. By not issuing any notice or

charge-sheet inference of abandonment cannot be drawn which was to be proved like any other fact

by leading cogent evidence. Having not issued any legal notice to the petitioner or omitted to raise

charge-sheet belies the stand of respondent on abandonment of the job by respondent and for said

reason plea of petitioner has to be accepted that services of petitioner have been illegally terminated

1741

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

by verbal order in the year January, 2009. In view of the foregoing discussions, it is held that

petitioner has failed to prove violation of provisions of Section 25-F of the Industrial Disputes Act

however petitioner has duly proved violation of Section 25- G and Section 25-H of the Act by the

respondent. Issue no.1 is thus answered in affirmative holding that termination of services of

petitioner during January, 2009 by Divisional Forest Officer, Hamirpur is illegal and unjustified.

14. With regard to source of income of petitioner ever since termination of his services, it

is relevant to mention here that petitioner although in claim petition as well as affidavit has

mentioned that he remained unemployed who had no source of income whatsoever but in the

witness box in his cross-examination, he has admitted that he nowadays worked privately who had

sufficient and reasonable income from private work. Thus, it cannot be stated that petitioner was

not gainfully employed. However, keeping in view the manner petitioner was verbally disengaged

from his job he would be liable to reinstatement by the respondent with his seniority and continuity

in service except back wages. Both these issues are answered accordingly.

ISSUE NO.3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is allowed

partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination except

back wages. The parties, however, shall bear their own costs.

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

19. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

__________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 134/2015

Date of Institution : 21.03.2015

Date of decision : 21.03.2016

1742

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Shri Budhi Singh s/o Shri Goverdhan Singh r/o Village and P.O. Nakrana, Tehsil Shree

Naina Devi Jee, District Bilaspur, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

“Whether the termination of services of Shri Budhi Singh S/O Shri Goverdhan Singh, R/O

Village and Post Office Nakrana, Tehsil Shree Naina Devi Jee, District Bilaspur, H.P. by

the Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P. w.e.f.

01.01.2009 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

relief the above workman is entitled to?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in 1998 and he worked for three months and in the

year 2007 he had worked for two months i.e. June and July rather in the year 2008 he had worked

for whole month with the Range Forest Wild Life Shri Naina Deviji, District Bilaspur, H.P. where

he continued to worked till January, 2009. The grievance of petitioner remains that respondent had

without any rhyme and reason and serving any notice orally terminated his services in January,

2009. It is specifically alleged that ignoring the rights of claimant/petitioner respondent had not

prepared seniority list of daily waged workers as on 31st July, 2010 and did not reflect petitioner’s

name in the seniority list according to which several workers namely S/Sh. Ashok Kumar, Madan

Lal, Rajesh Kumar, Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal Singh, Pratap Chand,

Ravinder Kumar, Bantu Singh, Sant Ram, Pankaj Walia, Vijay Kumar, Rajesh Kumar, Naresh

Kumar, Aman Kumar, Praveen Kumar and Surinder Kumar were still employed and were junior to

petitioner. Thus, alleging to have not followed the principle of ‘last come first go’ envisaged under

Section 25-H and 25-G of the Industrial Disputes Act, 1947 and the services of petitioner had been

disengaged. At the same time, provisions of Section 25-F too had not been followed which was also

an unfair labour practice as petitioner had rendered service of 240 days immediately prior to his

termination. The petitioner further alleges that he was unemployed who had no source of income of

livelihood. Accordingly, petitioner prays for reinstatement with full back wages and all

consequential benefits admissible to him.

4.

The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits admitted that petitioner had been engaged initially in

March, 2008 in Shri Naina Deviji Wild Life Range as casual labourer where seasonal work was

1743

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

being carried out through volunteers and local villagers and that petitioner was never engaged as

daily wager so question of retrenching him from work did not arise. It is also contended that

petitioner had been attending the work intermittently as was clear from mandays chart on record. It

is specifically alleged that petitioner was not attending the work regularly rather he visited site of

work as per his own convenience and that no fictional breaks had ever been given by the

respondent/department. It also remains the case of respondent that the work which was being

carried out in Shri Naina Deviji Wild Life was seasonal work and therefore the question of working

as daily wager did not arise. It is admitted that name of the petitioner did not figure in the seniority

list due to the reason that petitioner was employed as casual labourer and had not worked

continuously for 240 days in a year. It has been emphatically denied that petitioner had worked for

240 days in any calendar year immediately preceding his termination and for said reason

respondent cannot be stated to have violated Section 25-F of the Industrial Disputes Act. Since the

petitioner himself has allegedly abandoned the work who had not completed 240 days, there was

not requirement of showing or reflecting his name in the seniority list or serving any notice under

Section 25-F of the Industrial Disputes Act. The petitioner is stated to have been gainfully

employed as he himself engaged in agricultural work which was cultivable land wherefrom

petitioner earned his livelihood. Accordingly, petition was sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of mandays chart of Sh. Sundar Ram, Ex.

PW1/C copy of mandays chart of Sh. Garja Ram, Ex. PW1/D copy of seniority list, Ex. PW1/E

copy of CWP No. 2261/2014 decided on 18.10.2004 and closed evidence. On the other hand,

repudiating the evidence led by petitioner, respondent had examined Shri H.K. Sarwata, Divisional

Forest Officer, Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex. RW1/A,

Mandays chart Ex. RW1/B, Seniority list Ex. RW1/C, copy of letter dated 11.12.1997 Ex. RW1/D,

copy of letter dated 9.5.2000 Ex. RW1/E and closed evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 16.9.2015 for

determination which are as under:

1. Whether termination of the services of the petitioner by the respondent w.e.f.

01.01.2009 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3. Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Discussed.

1744

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflects total number of days for petitioner worked i.e. from March, 2008 to

December, 2008. As per this document on record, petitioner is shown to have worked for 104 days

in the month of w.e.f. March, 2008 to December, 2008 and thereafter did not work with the

respondent. A bare glance on this document would reveal that petitioner had not worked 240 days

w.e.f. March, 2008 to December, 2008 in this year it can be seen from mandays chart aforestated

that petitioner had not worked for 240 days as petitioner is shown to have worked for 72 days only.

As such, when petitioner had totally worked for 104 days, plea of having worked for 240 days gets

falsified and thus provisions of Section 25-F of Industrial Disputes Act are not attracted.

12. In so far as violation of Section 25-G and Section 25-H of the Industrial Disputes Act

are concerned, it would be relevant to mention here that Ex. PW1/C and Ex. RW1/C are the same

document i.e. seniority list of the daily wagers from 1999 onwards to 31.7.2010 in respect of Wild

Life Division Hamirpur which showed name of petitioner figuring at serial no.16. In the year 2008,

petitioner is shown to have worked for 104 days. After the name of claimant/petitioner this

seniority list referred to above further stipulates names of workers upto serial no.38 who are stated

to be junior to petitioner and retained in service while the services of the petitioner had been

retrenched. The fact that about 21 workers whose names are enumerated in para no.5 of the

affidavit Ex. PW1/A of petitioner were junior and still employed has not been repudiated by Ld.

Dy. D.A. while cross-examining the petitioner assumes significance. Not only this, as per mandays

chart Ex. PW1/B Sunder Ram is shown to have been engaged in 2009 who continued to work in

2013. Similarly, Ex. PW1/C in the mandays chart of Garja Ram who is shown to have engaged by

issuing muster roll in 2009 who too is shown to have worked till upto 15.6.2013. Abovestated

documents clearly show that both these daily waged workmen were appointed after the year of

termination in January, 2009. On the other hand, respondent RW1 Shri H.K. Sarwata in his cross-

examination admitted that the workers mentioned in Seniority list Ex. P1 shows that the workers

figuring at serial nos. 8,9,19, 20 and 21 were junior to the petitioner. He further admitted that no

show cause notice was issued to the petitioner when he had left the job. Although, admitted that the

petitioner was engaged in the year 2008. Minor scrutiny of testimony of RW1 would further reveal

that petitioner had been initially engaged in Hamirpur Forest Division whereas petitioner was

factually initially engaged by Forest Range Officer, Shri Naina Deviji but this aspect ceases to have

significance on the merits of case in as much as respondent in its reply nowhere alleged about

bifurcation of Division of Hamirpur Division and Bilaspur and preparation of separate seniority list.

Thus, arguments of Ld. Dy. D.A. are not supported with corresponding pleadings and evidence on

record. In Mackinon Machenize & Company Ltd. vs. Mackinon Employees Union, reported in

2015 LLR 337 Hon’ble Apex Court has in unambiguous terms has held that non preparation of

seniority list or non displaying of seniority list is breach of Section 25-G of the Industrial

Disputes Act. In the case in hand, omission of respondent in preparation seniority list of Bilaspur

Division and failing to reflect his name in said seniority list by respondent clearly violates Section

25-G of Industrial Disputes Act.

1745

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

13. As has come in the evidence of the parties that in the seniority list as on 31.12.2014

relating to Bilaspur Division, the name of petitioner has not been mentioned in the list Ex. P1

prepared by respondent himself clearly vitiate of provisions of Section 25-G of the Industrial

Disputes Act in view of law laid down by the Hon’ble Apex Court (2015 supra). Otherwise also,

from testimony of petitioner coupled with seniority list, an irresistible inference which may be

drawn is that several junior persons whose names were mentioned in para no.5 of affidavit of

petitioner were still working with the respondent whereas the services of petitioner were illegally

terminated without serving any notice by the respondent. Thus, principle of ‘Last come First go’

envisaged under Section 25-G was not followed. It is settled law for applicability of Section 25 G

of Industrial Disputes Act that it is not necessary that claimant/petitioner ought to have completed

240 days in a year as has been held by the Hon’ble Apex Court in Central Bank of India vs. S.

Satyam, 1996 (5) SCC 419. Similarly, while recruiting or engaging new hands even petitioner was

not afforded an opportunity to work rather respondent in his reply admitted that he failed to enter

the name of the petitioner as stated above. Be it noticed that respondent has made inconsistent plea

of work of the Wild Life Bilaspur Division was stated to be seasonal in nature and the other plea

that petitioner himself abandoned the job. The case of petitioner remain that the petitioner

abandoned the job of his own who used to attend the work intermittently of his own whims and

convenience and respondent has not issued any notice calling upon the petitioner to join of his

duties moreso when petitioner had not completed 240 days. By not issuing any notice or charge-

sheet inference of abandonment cannot be drawn which was to be proved like any other fact by

leading cogent evidence. Having not issued any legal notice to the petitioner or omitted to raise

charge-sheet belies the stand of respondent on abandonment of the job by respondent and for said

reason plea of petitioner has to be accepted that services of petitioner have been illegally terminated

by verbal order in the year January, 2009. In view of the foregoing discussions, it is held that

petitioner has failed to prove violation of provisions of Section 25-F of the Industrial Disputes Act

however petitioner has duly proved violation of Section 25- G and Section 25-H of the Act by the

respondent. Issue no.1 is thus answered in affirmative holding that termination of services of

petitioner during January, 2009 by Divisional Forest Officer, Hamirpur is illegal and unjustified.

14. With regard to source of income of petitioner ever since termination of his services, it

is relevant to mention here that petitioner although in claim petition as well as affidavit has

mentioned that he remained unemployed who had no source of income whatsoever but in the

witness box in his cross-examination, he has admitted that he nowadays worked privately who had

sufficient and reasonable income from private work. Thus, it cannot be stated that petitioner was

not gainfully employed. However, keeping in view the manner petitioner was verbally disengaged

from his job he would be liable to reinstatement by the respondent with his seniority and continuity

in service except back wages. Both these issues are answered accordingly.

ISSUE NO.3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is allowed

partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination except

back wages. The parties, however, shall bear their own costs.

1746

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

19. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

__________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-

CUMINDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 135/2015

Date of Institution : 21.03.2015

Date of decision : 21.03.2016

Shri Rakesh Kumar s/o Shri Ranjeet Singh, r/o Village and P.O. Nakrana, Tehsil Shree

Naina Devi Jee, District Bilaspur, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

“Whether the termination of services of Shri Rakesh Kumar S/O Shri Ranjeet Singh, R/O

Village and P.O. Nakrana, Tehsil Shree Naina Devi Jee, District Bilaspur, H.P. by the

Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P. w.e.f.

01.01.2009 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

relief the above workman is entitled to?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

1747

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

3. Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in 2008 by Range Forest Wild Life Shri Naina

Deviji, District Bilaspur, H.P. where he continued to worked till January, 2009. The grievance of

petitioner remains that respondent had without any rhyme and reason and serving any notice orally

terminated his services in January, 2009. It is alleged that in May, 2011 respondent had stopped

muster roll however he continued to engage junior workers which was unfair labour practice. It is

specifically alleged that ignoring the rights of claimant/petitioner respondent had not prepared

seniority list of daily waged workers as on 31st July, 2010 and did not reflect petitioner’s name in

the seniority list according to which several workers namely S/Sh. Ashok Kumar, Madan Lal,

Rajesh Kumar, Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal Singh, Pratap Chand, Ravinder

Kumar, Bantu Singh, Sant Ram, Pankaj Walia, Vijay Kumar, Rajesh Kumar, Naresh Kumar, Aman

Kumar, Praveen Kumar and Surinder Kumar were still employed and were junior to petitioner.

Thus, alleging to have not followed the principle of ‘last come first go’ envisaged under Section

25-H and 25-G of the Industrial Disputes Act, 1947 services of petitioner had been disengaged. At

the same time, provisions of Section 25-F too had not been followed which was also an unfair

labour practice as petitioner had rendered service of 240 days immediately prior to his termination.

The petitioner further alleges that he was unemployed who had no source of income of livelihood.

Accordingly, petitioner prays for reinstatement with full back wages and all consequential benefits

admissible to him.

4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits admitted that petitioner had been engaged initially in June,

2008 in Shri Naina Deviji Wild Life Range as casual labourer where seasonal work was being

carried out through volunteers and local villagers and that petitioner was never engaged as daily

wager so question of retrenching him from work did not arise. It is also contended that petitioner

had been attending the work intermittently as was clear from mandays chart on record. It is

specifically alleged that petitioner was not attending the work regularly rather he visited site of

work as per his own convenience and that no fictional breaks had ever been given by the

respondent/department. It also remains the case of respondent that the work which was being

carried out in Shri Naina Deviji Wild Life was seasonal work and therefore the question of working

as daily wager did not arise. It is admitted that name of the petitioner did not figure in the seniority

list due to the reason that petitioner was employed as casual labourer and had not worked

continuously for 240 days in a year. It has been emphatically denied that petitioner had worked for

240 days in any calendar year immediately preceding his termination and for said reason

respondent cannot be stated to have violated Section 25-F of Industrial Disputes Act. Since the

petitioner himself has allegedly abandoned the work who had not completed 240 days, there was

not requirement of showing or reflecting his name in the seniority list or serving any notice under

Section 25-F of the Industrial Disputes Act. The petitioner is stated to have been gainfully

employed as he himself engaged in agricultural work which was cultivable land wherefrom

petitioner earned his livelihood. Accordingly, petition was sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of mandays chart of Sh. Sundar Ram, Ex.

PW1/C copy of mandays chart of Sh. Garja Ram, Ex. PW1/D copy of seniority list, Ex. PW1/E

copy of CWP No. 2261/2014 decided on 18.10.2004 and closed evidence. On the other hand,

repudiating the evidence led by petitioner, respondent had examined Shri H.K. Sarwata, Divisional

Forest Officer, Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex. RW1/A,

Mandays chart Ex. RW1/B, Seniority list Ex. RW1/C, copy of letter dated 11.12.1997 Ex. RW1/D,

copy of letter dated 9.5.2000 Ex. RW1/E and closed evidence.

1748

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 16.9.2015 for

determination which are as under:

1. Whether termination of the services of the petitioner by the respondent w.e.f.

01.01.2009 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3. Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Discussed.

Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflects total number of days for petitioner worked i.e. from June, 2008 to

December, 2008. As per this document on record, petitioner is shown to have worked for 72 days in

the month of w.e.f. June, 2008 to December, 2008 and thereafter did not work with the respondent.

A bare glance on this document would reveal that petitioner had not worked 240 days w.e.f. June,

2008 to December, 2008 in this year it can be seen from mandays chart aforestated that petitioner

had not worked for 240 days as petitioner is shown to have worked for 72 days only. As such, when

petitioner had totally worked for 72 days, plea of having worked for 240 days gets falsified and

thus provisions of Section 25-F of Industrial Disputes Act are not attracted.

12. In so far as violation of Section 25-G and Section 25-H of the Industrial Disputes Act

are concerned, it would be relevant to mention here that Ex. PW1/C and Ex. RW1/C are the same

document i.e. seniority list of the daily wagers from 1999 onwards to 31.7.2010 in respect of Wild

Life Division Hamirpur which showed name of petitioner figuring at serial no.18. In the year 2008,

petitioner is shown to have worked for 72 days. After the name of claimant/petitioner this seniority

list referred to above further stipulates names of workers upto serial no.38 who are stated to be

junior to petitioner and retained in service while the services of the petitioner had been retrenched.

The fact that about 17 workers whose names are enumerated in para no.5 of the affidavit Ex.

1749

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

PW1/A of petitioner were junior and still employed has not been repudiated by Ld. Dy. D.A. while

cross-examining the petitioner assumes significance. Not only this, as per mandays chart Ex.

PW1/B Sunder Ram is shown to have been engaged in 2009 who continued to work in 2013.

Similarly, Ex. PW1/C in the mandays chart of Garja Ram who is shown to have engaged by issuing

muster roll in 2009 who too is shown to have worked till upto 15.6.2013. Abovestated documents

clearly show that both these daily waged workmen were appointed after the year of termination in

January, 2009. On the other hand, respondent RW1 Shri H.K. Sarwata in his cross-examination

admitted that the workers mentioned in Seniority list Ex. P1 shows that the workers figuring at

serial nos. 8,9,19, 20 and 21 were junior to the petitioner. He further admitted that no show cause

notice was issued to the petitioner when he had left the job. Although, admitted that the petitioner

was engaged in the year 2008. Minor scrutiny of testimony of RW1 further reveal that petitioner

had been initially engaged in Hamirpur Forest Division whereas petitioner was factually initially

engaged by Forest Range Officer, Shri Naina Deviji but this aspect ceases to have significance on

the merits of case in as much as respondent in its reply nowhere alleged about bifurcation of

Division of Hamirpur Division and Bilaspur and preparation of separate seniority list. Thus,

arguments of Ld. Dy. D.A. are not supported with corresponding pleadings and evidence on record.

In Mackinon Machenize & Company Ltd. vs. Mackinon Employees Union, reported in 2015

LLR 337 Hon’ble Apex Court has in unambiguous terms has held that non preparation of

seniority list or non displaying of seniority list is breach of Section 25-G of the Industrial

Disputes Act. In the case in hand, omission of respondent in preparation seniority list of Bilaspur

Division and failing to reflect his name in said seniority list by respondent clearly violates Section

25-G of Industrial Disputes Act.

13. As has come in the evidence of the parties that in the seniority list as on 31.12.2014

relating to Bilaspur Division, the name of petitioner has not been mentioned in the list Ex. P1

prepared by respondent himself clearly vitiate of provisions of Section 25-G of the Industrial

Disputes Act in view of law laid down by the Hon’ble Apex Court (2015 supra). Otherwise also,

from testimony of petitioner coupled with seniority list, an irresistible inference which may be

drawn is that several junior persons whose names were mentioned in para no.5 of affidavit of

petitioner were still working with the respondent whereas the services of petitioner were illegally

terminated without serving any notice by the respondent. Thus, principle of ‘Last come First go’

envisaged under Section 25-G was not followed. It is settled law for applicability of Section 25 G

of Industrial Disputes Act that it is not necessary that claimant/petitioner ought to have completed

240 days in a year as has been held by the Hon’ble Apex Court in Central Bank of India vs. S.

Satyam, 1996 (5) SCC 419. Similarly, while recruiting or engaging new hands even petitioner was

not afforded an opportunity to work rather respondent in his reply admitted that he failed to enter

the name of the petitioner as stated above. Be it noticed that respondent has made inconsistent plea

of work of the Wild Life Bilaspur Division was stated to be seasonal in nature and the other plea

that petitioner himself abandoned the job. The case of petitioner remain that the petitioner

abandoned the job of his own who used to attend the work intermittently of his own whims and

convenience and respondent has not issued any notice calling upon the petitioner to join of his

duties moreso when petitioner had not completed 240 days. By not issuing any notice or charge-

sheet inference of abandonment cannot be drawn which was to be proved like any other fact by

leading cogent evidence. Having not issued any legal notice to the petitioner or omitted to raise

charge-sheet belies the stand of respondent on abandonment of the job by respondent and for said

reason plea of petitioner has to be accepted that services of petitioner have been illegally terminated

by verbal order in the year January, 2009. In view of the foregoing discussions, it is held that

petitioner has failed to prove violation of provisions of Section 25-F of the Industrial Disputes Act

however petitioner has duly proved violation of Section 25- G and Section 25-H of the Act by the

respondent. Issue no.1 is thus answered in affirmative holding that termination of services of

petitioner during January, 2009 by Divisional Forest Officer, Hamirpur is illegal and unjustified.

1750

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

14. With regard to source of income of petitioner ever since termination of his services, it

is relevant to mention here that petitioner although in claim petition as well as affidavit has

mentioned that he remained unemployed who had no source of income whatsoever but in the

witness box in his cross-examination, he has admitted that he nowadays worked privately who had

sufficient and reasonable income from private work. Thus, it cannot be stated that petitioner was

not gainfully employed. However, keeping in view the manner petitioner was verbally disengaged

from his job he would be liable to reinstatement by the respondent with his seniority and continuity

in service except back wages. Both these issues are answered accordingly.

ISSUE NO. 3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is allowed

partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination except

back wages. The parties, however, shall bear their own costs.

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

19. File, after due completion be consigned to the Record Room. Announced in the open

Court today this 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

___________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 67/2015

Date of Institution : 23.02.2015

Date of decision : 21.03.2016

Shri Ram Pal s/o Shri Shankar Dass, r/o Village and P.O. Nakrana, Tehsil Shree Naina Devi

Jee, District Bilaspur, H.P.

. .Petitioner.

Versus

1751

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

“Whether the termination of services of Shri Ram Pal S/O Shri Shankar Dass, R/O Village

and P.O. Nakrana, Tehsil Shree Naina Devi Ji, District Bilaspur, H.P. by the Divisional

Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P. w.e.f. 01.01.2009

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 relief the

above workman is entitled to?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in 1998 and he worked for three months and in the

year 2007 petitioner had worked for two months i.e. June and July rather in the year 2008 he had

worked for whole month with the Range Forest Wild Life Shri Naina Deviji, District Bilaspur, H.P.

where he continued to worked till January, 2009. The grievance of petitioner remains that

respondent had without any rhyme and reason and serving any notice orally terminated his services

in January, 2009. It is specifically alleged that ignoring the rights of claimant/petitioner respondent

had not prepared seniority list of daily waged workers as on 31st July, 2010 did not reflect

petitioner’s name in the seniority list according to which several workers namely S/Sh. Ashok

Kumar, Madan Lal, Rajesh Kumar, Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal Singh,

Pratap Chand, Ravinder Kumar, Bantu Singh, Sant Ram, Pankaj Walia, Vijay Kumar, Rajesh

Kumar, Naresh Kumar, Aman Kumar, Praveen Kumar and Surinder Kumar were still employed

and were junior to petitioner. Thus, alleging to have not followed the principle of ‘last come first

go’ envisaged under Section 25-H and 25-G of the Industrial Disputes Act, 1947 and the services of

petitioner had been disengaged. At the same time, provisions of Section 25-F too had not been

followed which was also an unfair labour practice as petitioner had rendered service of 240 days

immediately prior to his termination. The petitioner further alleges that he was unemployed who

had no source of income of livelihood. Accordingly, petitioner prays for reinstatement with full

back wages and all consequential benefits admissible to him.

4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits admitted that petitioner had been engaged initially in

March, 2008 in Shri Naina Deviji Wild Life Range as casual labourer where seasonal work was

being carried out through volunteers and local villagers and that petitioner was never engaged as

daily wager so question of retrenching him from work did not arise. It is also contended that

petitioner had been attending the work intermittently as was clear from mandays chart on record. It

is specifically alleged that petitioner was not attending the work regularly rather he visited site of

work as per his own convenience and that no fictional breaks had ever been given by the

1752

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

respondent/department. It also remains the case of respondent that the work which was being

carried out in Shri Naina Deviji Wild Life was seasonal work and therefore the question of working

as daily wager did not arise. It is admitted that name of the petitioner did not figure in the seniority

list due to the reason that petitioner was employed as casual labourer and had not worked

continuously for 240 days in a year. It has been emphatically denied that petitioner had worked for

240 days in any calendar year immediately preceding his termination and for said reason

respondent cannot be stated to have violated Section 25-F of Industrial Disputes Act. Since the

petitioner himself has allegedly abandoned the work who had not completed 240 days, there was

not requirement of showing or reflecting his name in the seniority list or serving any notice under

Section 25-F of the Industrial Disputes Act. The petitioner is stated to have been gainfully

employed as he himself engaged in agricultural work which was cultivable land wherefrom

petitioner earned his livelihood. Accordingly, petition was sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of mandays chart of Sh. Sundar Ram, Ex.

PW1/C copy of mandays chart of Sh. Garja Ram, Ex. PW1/D copy of seniority list, Ex. PW1/E

copy of CWP No. 2261/2014 decided on 18.10.2004 and closed evidence. On the other hand,

repudiating the evidence led by petitioner, respondent had examined Shri H.K. Sarwata, Divisional

Forest Officer, Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex. RW1/A,

Mandays chart Ex. RW1/B, Seniority list Ex. RW1/C, copy of letter dated 11.12.1997 Ex. RW1/D,

copy of letter dated 9.5.2000 Ex. RW1/E and closed evidence.

7.

I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 16.9.2015 for

determination which are as under:

1.

Whether termination of the services of the petitioner by the respondent w.e.f.

01.01.2009 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3.

Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Discussed.

Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

1753

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflects total number of days for petitioner worked i.e. from March, 2008 to

December, 2008. As per this document on record, petitioner is shown to have worked for 100 days

in the month of w.e.f. March, 2008 to December, 2008 and thereafter did not work with the

respondent. A bare glance on this document would reveal that petitioner had not worked 240 days

w.e.f. March, 2008 to December, 2008 in this year it can be seen from mandays chart aforestated

that petitioner had not worked for 240 days as petitioner is shown to have worked for 100 days

only. As such, when petitioner had totally worked for 100 days, plea of having worked for 240 days

gets falsified and thus provisions of Section 25-F of Industrial Disputes Act are not attracted.

12. In so far as violation of Section 25-G and Section 25-H of the Industrial Disputes Act

are concerned, it would be relevant to mention here that Ex. PW1/C and Ex. RW1/C are the same

document i.e. seniority list of the daily wagers from 1999 onwards to 31.7.2010 in respect of Wild

Life Division Hamirpur which showed name of petitioner figuring at serial no.17. In the year 2008,

petitioner is shown to have worked for 100 days. After the name of claimant/petitioner this

seniority list referred to above further stipulates names of workers upto serial no.38 who are stated

to be junior to petitioner and retained in service while the services of the petitioner had been

retrenched. The fact that about 20 workers whose names are enumerated in para no.5 of the

affidavit Ex. PW1/A of petitioner were junior and still employed has not been repudiated by Ld.

Dy. D.A. while cross-examining the petitioner assumes significance. Not only this, as per mandays

chart Ex. PW1/B Sunder Ram is shown to have been engaged in 2009 who continued to work in

2013. Similarly, Ex. PW1/C in the mandays chart of Garja Ram who is shown to have engaged by

issuing muster roll in 2009 who too is shown to have worked till upto 15.6.2013. Abovestated

documents clearly show that both these daily waged workmen were appointed after the year of

termination in January, 2009. On the other hand, respondent RW1 Shri H.K. Sarwata in his cross-

examination admitted that the workers mentioned in Seniority list Ex. P1 shows that the workers

figuring at serial nos. 8,9,19, 20 and 21 were junior to the petitioner. He further admitted that no

show cause notice was issued to the petitioner when he had left the job. Although, admitted that the

petitioner was engaged in the year 2008. Minor scrutiny of testimony of RW1 would further reveal

that petitioner had been initially engaged in Hamirpur Forest Division whereas petitioner was

factually initially engaged by Forest Range Officer, Shri Naina Deviji but this aspect ceases to have

significance on the merits of case in as much as respondent in its reply nowhere alleged about

bifurcation of Division of Hamirpur Division and Bilaspur and preparation of separate seniority list.

Thus, arguments of Ld. Dy. D.A. are not supported with corresponding pleadings and evidence on

record. In Mackinon Machenize & Company Ltd. vs. Mackinon Employees Union, reported in

2015 LLR 337 Hon’ble Apex Court has in unambiguous terms has held that non preparation of

seniority list or non displaying of seniority list is breach of Section 25-G of the Industrial

Disputes Act. In the case in hand, omission of respondent in preparation seniority list of Bilaspur

Division and failing to reflect his name in said seniority list by respondent clearly violates Section

25-G of Industrial Disputes Act.

13. As has come in the evidence of the parties that in the seniority list as on 31.12.2014

relating to Bilaspur Division, the name of petitioner has not been mentioned in the list Ex. P1

prepared by respondent himself clearly vitiate of provisions of Section 25-G of the Industrial

Disputes Act in view of law laid down by the Hon’ble Apex Court (2015 supra). Otherwise also,

1754

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

from testimony of petitioner coupled with seniority list, an irresistible inference which may be

drawn is that several junior persons whose names were mentioned in para no.5 of affidavit of

petitioner were still working with the respondent whereas the services of petitioner were illegally

terminated without serving any notice by the respondent. Thus, principle of ‘Last come First go’

envisaged under Section 25-G was not followed. It is settled law for applicability of Section 25 G

of Industrial Disputes Act that it is not necessary that claimant/petitioner ought to have completed

240 days in a year as has been held by the Hon’ble Apex Court in Central Bank of India vs. S.

Satyam, 1996 (5) SCC 419. Similarly, while recruiting or engaging new hands even petitioner was

not afforded an opportunity to work rather respondent in his reply admitted that he failed to enter

the name of the petitioner as stated above. Be it noticed that respondent has made inconsistent plea

of work of the Wild Life Bilaspur Division was stated to be seasonal in nature and the other plea

that petitioner himself abandoned the job. The case of petitioner remain that the petitioner

abandoned the job of his own who used to attend the work intermittently of his own whims and

convenience and respondent has not issued any notice calling upon the petitioner to join of his

duties moreso when petitioner had not completed 240 days. By not issuing any notice or charge-

sheet inference of abandonment cannot be drawn which was to be proved like any other fact by

leading cogent evidence. Having not issued any legal notice to the petitioner or omitted to raise

charge-sheet belies the stand of respondent on abandonment of the job by respondent and for said

reason plea of petitioner has to be accepted that services of petitioner have been illegally terminated

by verbal order in the year January, 2009. In view of the foregoing discussions, it is held that

petitioner has failed to prove violation of provisions of Section 25-F of the Industrial Disputes Act

however petitioner has duly proved violation of Section 25- G and Section 25-H of the Act by the

respondent. Issue no.1 is thus answered in affirmative holding that termination of services of

petitioner during January, 2009 by Divisional Forest Officer, Hamirpur is illegal and unjustified.

14. With regard to source of income of petitioner ever since termination of his services, it

is relevant to mention here that petitioner although in claim petition as well as affidavit has

mentioned that he remained unemployed who had no source of income whatsoever but in the

witness box in his cross-examination, he has admitted that he nowadays worked privately who had

sufficient and reasonable income from private work. Thus, it cannot be stated that petitioner was

not gainfully employed. However, keeping in view the manner petitioner was verbally disengaged

from his job he would be liable to reinstatement by the respondent with his seniority and continuity

in service except back wages. Both these issues are answered accordingly.

ISSUE NO.3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is allowed

partly. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination except

back wages. The parties, however, shall bear their own costs.

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

1755

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

19. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 21st day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

____________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-

CUM-INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 68/2015

Date of Institution : 23.02.2015

Date of decision : 21.03.2016

Shri Roop Lal s/o Shri Shrawan Kumar, r/o Village and P.O. Nakrana, Tehsil Shree

Naina Devi Jee, District Bilaspur, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1.

The following reference has been received from the appropriate Government for

adjudication:

“Whether the termination of services of Shri Roop Lal S/O Shri Shrawan Kumar, R/O

Village and P.O. Nakrana, Tehsil Shree Naina Devi Ji, District Bilaspur, H.P. by the

Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P. w.e.f.

1756

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

01.01.2009 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 relief the above workman is entitled to?”

2.

In pursuance to receipt of reference from appropriate government, notices were

issued to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3.

Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in 2008 by Range Forest Wild Life Shri Naina

Deviji, District Bilaspur, H.P. where he continued to worked till January, 2009. The grievance of

petitioner remains that respondent had without any rhyme and reason and serving any notice

orally terminated his services in January, 2009. It is alleged that in May, 2011 respondent had

stopped muster roll however he continued to engage junior workers which was unfair labour

practice. It is specifically alleged that ignoring the rights of claimant/petitioner respondent had

not prepared seniority list of daily waged workers as on 31st July, 2010 and did not reflect

petitioner’s name in the seniority list according to which several workers namely S/Sh. Ashok

Kumar, Madan Lal, Rajesh Kumar, Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal

Singh, Pratap Chand, Ravinder Kumar, Bantu Singh, Sant Ram, Pankaj Walia, Vijay Kumar,

Rajesh Kumar, Naresh Kumar, Aman Kumar, Praveen Kumar and Surinder Kumar were still

employed and were junior to petitioner. Thus, alleging to have not followed the principle of ‘last

come first go’ envisaged under Section 25-H and 25-G of the Industrial Disputes Act, 1947

services of petitioner had been disengaged. At the same time, provisions of Section 25-F too had

not been followed which was also an unfair labour practice as petitioner had rendered service

of 240 days immediately prior to his termination. The petitioner further alleges that he was

unemployed who had no source of income of livelihood. Accordingly, petitioner prays for

reinstatement with full back wages and all consequential benefits admissible to him.

4.

The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits admitted that petitioner had been engaged initially in

June, 2008 in Shri Naina Deviji Wild Life Range as casual labourer where seasonal work was

being carried out through volunteers and local villagers and that petitioner was never engaged

as daily wager so question of retrenching him from work did not arise. It is also contended that

petitioner had been attending the work intermittently as was clear from mandays chart on record.

It is specifically alleged that petitioner was not attending the work regularly rather he visited

site of work as per his own convenience and that no fictional breaks had ever been given by the

respondent/department. It also remains the case of respondent that the work which was being

carried out in Shri Naina Deviji Wild Life was seasonal work and therefore the question of working

as daily wager did not arise. It is admitted that name of the petitioner did not figure in the

seniority list due to the reason that petitioner was employed as casual labourer and had not

worked continuously for 240 days in a year. It has been emphatically denied that petitioner had

worked for 240 days in any calendar year immediately preceding his termination and for said

reason respondent cannot be stated to have violated Section 25-F of Industrial Disputes Act.

Since the petitioner himself has allegedly abandoned the work who had not completed 240 days,

there was not requirement of showing or reflecting his name in the seniority list or serving any

notice under Section 25-F of the Industrial Disputes Act. The petitioner is stated to have been

gainfully employed as he himself engaged in agricultural work which was cultivable land

wherefrom petitioner earned his livelihood. Accordingly, petition was sought to be dismissed.

5.

The petitioner filed rejoinder, reiterated his stand as maintained in the claim

petition and contentions raised by the respondent had been denied by petitioner.

1757

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

6.

To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of mandays chart of Sh. Sundar Ram,

Ex. PW1/C copy of mandays chart of Sh. Garja Ram, Ex. PW1/D copy of seniority list, Ex.

PW1/E copy of CWP No. 2261/2014 decided on 18.10.2004 and closed evidence. On the other

hand, repudiating the evidence led by petitioner, respondent had examined Shri H.K. Sarwata,

Divisional Forest Officer, Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex.

RW1/A, Mandays chart Ex. RW1/B, Seniority list Ex. RW1/C, copy of letter dated 11.12.1997

Ex. RW1/D, copy of letter dated 9.5.2000 Ex. RW1/E and closed evidence.

7.

I have heard the Authorized Representative/counsel representing petitioner and ld.

Dy. D.A. for respondent, gone through records of the case carefully.

8.

From the contentions raised, following issues were framed on 16.9.2015 for

determination which are as under:

1.

Whether termination of the services of the petitioner by the respondent w.e.f.

01.01.2009 is/was improper and unjustified as alleged?

. .OPP.

2.

If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3.

Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Relief.

9.

For the reasons to be recorded hereinafter while discussing the aforesaid issues,

my findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Discussed. Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflects total number of days for petitioner worked in December, 2008. As per this

document on record, petitioner is shown to have worked for 02 days in the month of December,

2008 and thereafter did not work with the respondent. A bare glance on this document would

reveal that petitioner had not worked 240 days in December, 2008 in this year it can be seen

from mandays chart aforestated that petitioner had not worked for 240 days as petitioner is

shown to have worked for 02 days only. As such, when petitioner had totally worked for 02 days,

plea of having worked for 240 days gets falsified and thus provisions of Section 25-F of Industrial

Disputes Act are not attracted.

1758

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

12. In so far as violation of Section 25-G and Section 25-H of the Industrial Disputes

Act are concerned, it would be relevant to mention here that Ex. PW1/C and Ex. RW1/C are the

same document i.e. seniority list of the daily wagers from 1999 onwards to 31.7.2010 in respect

of Wild Life Division Hamirpur which showed name of petitioner figuring at serial no.20. In

the year 2008, petitioner is shown to have worked for 02 days. After the name of

claimant/petitioner this seniority list referred to above further stipulates names of workers upto

serial no.38 who are stated to be junior to petitioner and retained in service while the services of

the petitioner had been retrenched. The fact that about 16 workers whose names are

enumerated in para no.5 of the affidavit Ex. PW1/A of petitioner were junior and still

employed has not been repudiated by Ld. Dy. D.A. while cross-examining the petitioner

assumes significance. Not only this, as per mandays chart Ex. PW1/B Sunder Ram is shown to

have been engaged in 2009 who continued to work in 2013. Similarly, Ex. PW1/C in the

mandays chart of Garja Ram who is shown to have engaged by issuing muster roll in 2009

who too is shown to have worked till upto 15.6.2013. Abovestated documents clearly show that

both these daily waged workmen were appointed after the year of termination in January,

2009. On the other hand, respondent RW1 Shri H.K. Sarwata in his cross-examination

admitted that the workers mentioned in Seniority list Ex. P1 shows that the workers figuring at

serial nos. 8,9,19, 20 and 21 were junior to the petitioner. He further admitted that no show

cause notice was issued to the petitioner when he had left the job. Although, admitted that the

petitioner was engaged in the year 2008. Minor scrutiny of testimony of RW1 would further

reveal that petitioner had been initially engaged in Hamirpur Forest Division whereas petitioner

was factually initially engaged by Forest Range Officer, Shri Naina Deviji but this aspect ceases

to have significance on the merits of case in as much as respondent in its reply nowhere

alleged about bifurcation of Division of Hamirpur Division and Bilaspur and preparation of

separate seniority list. Thus, arguments of Ld. Dy. D.A. are not supported with corresponding

pleadings and evidence on record. In Mackinon Machenize & Company Ltd. vs. Mackinon

Employees Union, reported in 2015 LLR 337 Hon’ble Apex Court has in unambiguous terms

has held that non preparation of seniority list or non displaying of seniority list is

breach of Section 25-G of the Industrial Disputes Act. In the case in hand, omission of

respondent in preparation seniority list of Bilaspur Division and failing to reflect his name in

said seniority list by respondent clearly violates Section 25-G of Industrial Disputes Act.

13. As has come in the evidence of the parties that in the seniority list as on 31.12.2014

relating to Bilaspur Division, the name of petitioner has not been mentioned in the list Ex. P1

prepared by respondent himself clearly vitiate of provisions of Section 25-G of the Industrial

Disputes Act in view of law laid down by the Hon’ble Apex Court (2015 supra). Otherwise also,

from testimony of petitioner coupled with seniority list, an irresistible inference which may be

drawn is that several junior persons whose names were mentioned in para no.5 of affidavit of

petitioner were still working with the respondent whereas the services of petitioner were illegally

terminated without serving any notice by the respondent. Thus, principle of ‘Last come First go’

envisaged under Section 25-G was not followed. It is settled law for applicability of Section

25-G of Industrial Disputes Act that it is not necessary that claimant/petitioner ought to have

completed 240 days in a year as has been held by the Hon’ble Apex Court in Central Bank

of India vs. S. Satyam, 1996 (5) SCC 419. Similarly, while recruiting or engaging new hands

even petitioner was not afforded an opportunity to work rather respondent in his reply admitted

that he failed to enter the name of the petitioner as stated above. Be it noticed that respondent

has made inconsistent plea of work of the Wild Life Bilaspur Division was stated to be seasonal in

nature and the other plea that petitioner himself abandoned the job. The case of petitioner remain

that the petitioner abandoned the job of his own who used to attend the work intermittently of his

own whims and convenience and respondent has not issued any notice calling upon the

petitioner to join of his duties moreso when petitioner had not completed 240 days. By not

issuing any notice or charge-sheet inference of abandonment cannot be drawn which was to be

1759

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

proved like any other fact by leading cogent evidence. Having not issued any legal notice to the

petitioner or omitted to raise charge-sheet belies the stand of respondent on abandonment of the

job by respondent and for said reason plea of petitioner has to be accepted that services of

petitioner have been illegally terminated by verbal order in the year January, 2009. In view of

the foregoing discussions, it is held that petitioner has failed to prove violation of provisions of

Section 25-F of the Industrial Disputes Act however petitioner has duly proved violation of

Section 25-G and Section 25-H of the Act by the respondent. Issue no.1 is thus answered in

affirmative holding that termination of services of petitioner during January, 2009 by Divisional

Forest Officer, Hamirpur is illegal and unjustified.

14. With regard to source of income of petitioner ever since termination of his services,

it is relevant to mention here that petitioner although in claim petition as well as affidavit has

mentioned that he remained unemployed who had no source of income whatsoever but in the

witness box in his cross- examination, he has admitted that he nowadays worked privately who

had sufficient and reasonable income from private work. Thus, it cannot be stated that

petitioner was not gainfully employed. However, keeping in view the manner petitioner was

verbally disengaged from his job he would be liable to reinstatement by the respondent with his

seniority and continuity in service except back wages. Both these issues are answered accordingly.

ISSUE NO.3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is

allowed partly. The respondent is hereby directed to re-engage the petitioner forthwith. The

petitioner shall be entitled to seniority and continuity in service from the date of his illegal

termination except back wages. The parties, however, shall bear their own costs.

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in

the official gazette.

19. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 21st day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

1760

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT

CUMINDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.

Ref: No. 110/ 2014

Smt. Kanta Devi w/o Sh. Lekh Raj, r/o VPO-Baral, Tehsil Nurpur, Distt. Kangra,

H.P.through Small Scale Industries Workers Union Boud, P.O. Jassur, Tehsil Nurpur, Distt. H.P.

. .Petitioner.

Versus

1.

The Managing Director, H.P. General Industries Corporation Ltd. Himrus Building,

Cart Road, Shimla-I.

2. The Director, H.P. General Industries Corporation Ltd. Dharamshala, Distt. Kangra,

H.P.

. .Respondents.

22-03-2016 Present: None for the petitioner.

Sh. Vipul Bhardwaj, adv. csl. for the respondents.

Sh. Lokesh Kumar Mahajan, Manager, Nurpur Silk Mills of respondent company present in

person.

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.

__________

22-03-2016 Present: None for the petitioner.

Sh. Vipul Bhardwaj, adv. csl. for the respondents.

Sh. Lokesh Kumar Mahajan, Manager, Nurpur Silk Mills of respondent company present in

person.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.15 P.M. None appearance of petitioner or her ld.csl. today is indicative of the fact that she 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.

Announced:

22-03-2016

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

1761

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT

CUMINDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.

Ref: No. 113/ 2014

Smt. Devi Rani w/o Shri Subhash Chand, r/o Ward No.5, V.P.O. & Tehsil Nurpur, Distt.

Kangra, H.P.

. .Petitioner.

Versus

1. The Managing Director, H.P. General Industries Corporation Ltd. Himrus Building,

Cart Road, Shimla-I.

2. The Director, H.P. General Industries Corporation Ltd. Dharamshala, Distt. Kangra,

H.P.

. .Respondents.

22-03-2016 Present: None for the petitioner.

Sh. Vipul Bhardwaj, adv. csl. for the respondents.

Sh. Lokesh Kumar Mahajan, Manager, Nurpur Silk Mills of respondent company present in

person.

Case called several times but none has appeared on behalf of the petitioner despite due

knowledge. It is 11.35 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.

__________

22-03-2016 Present: None for the petitioner.

Sh. Vipul Bhardwaj, adv. csl. for the respondents.

Sh. Lokesh Kumar Mahajan, Manager, Nurpur Silk Mills of respondent company present in

person.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.30 P.M. None appearance of petitioner or her ld.csl. today is indicative of the fact that she 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.

Announced:

22-03-2016

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

1762

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 235/2014

Date of Institution : 18.06.2014

Date of decision : 23.03.2016

Smt. Renu Vaidya w/o Shri Krishan Raj r/o Village Sun Rise Building, Strawberry Hills,

Near Regional Ayurvedic Hospital Shimla-2, H.P.

. .Petitioner.

Versus

The Assistant Town Planner, Sub Divisional Town Planning Office, Chamba, District

Chamba, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner

: Sh. Sh. N.L. Kaundal, AR

: Sh. Jitender Sharma, Adv.

: Sh. Vijay Kaundal, Adv.

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1.

The following reference has been received from the appropriate Government for

adjudication:

“Whether removal from the services of Smt. Renu Vaidya W/O Sh. Krishan Raj, R/O Sun

Rise Building, Strawberry Hills, Near Regional Ayurvedic Hospital Shimla-2 by the Sub

Divisional Town Planning Office, Chamba, Distt. Chamba during July/August, 1999 is

legal and justify? If not, what amount of back wages, seniority, past service benefits and

compensation the above workman is entitled to from the above employer?”

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner had filed statement of claim before this court.

3. Brief facts as stipulated in the claim petition reveal that petitioner above named had

been engaged by the respondent as Tracer Draughtsman on daily wage basis w.e.f. 01.01.1998

without any appointment order and settling any terms and conditions with prior permission of the

HOD against the vacant post where the petitioner continued to work upto July/August, 1999 when

her services were terminated illegally without issuance of any notice or payment of wages in lieu of

notice and thus her retrenchment in July/August, 1999 from service was unlawful in violation of

Section 25-F (a) and (b) of Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’ for

brevity) besides no communication was sent to the appropriate government under Section 25-F (c)

of the Act. The grievance of the petitioner remains that respondent while terminating the services of

petitioner had not followed the principle of ‘Last come First go’ envisaged under Section 25-G of

the Act. It is contended that no seniority list of daily wager/regular tracer/draughtsman had been

supplied by the respondent/department to the petitioner and had not placed the same on the notice

board at the time of her retrenchment and was even not furnished before the Conciliation Officer. It

is claimed that after her illegal termination petitioner has remained unemployed and thus was not

1763

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

gainfully employed anywhere. Accordingly, petitioner has prayed for setting aside illegal order

passed by the respondent with further prayer for reinstatement her services with seniority and

continuity with all consequential benefits. It is also prayed that since the petitioner had rendered

continuous service w.e.f. 1.1.2006 for eight years she was liable to be regularized with seniority

besides litigation costs of Rs.10,000/-.

4. The respondent contested petition, filed separate reply inter-alia taken preliminary

objections qua delay and laches and maintainability. On merits admitted that petitioner was

engaged by the respondent/department on 20.1.1998 as daily waged Tracer Darftsman (TDM) and

that she had worked intermittently with the respondent till 20.7.1998 however denied that petitioner

was engaged on 1.1.1998 and worked upto July/August, 1999. It is contended that petitioner had

never completed 240 days as required under Section 25-B of the Act. It is admitted that petitioner

in all worked for 140 days upto 20.7.1998 and that for said reason, question of terminating the

services of petitioner in July/August, 1999 did not arise. It has been emphatically denied that

persons junior to the petitioner had been retained in service by the respondent/department and had

not engaged/reengaged any junior to petitioner. As per letter dated 6.5.1998 of Director Town &

Country Planning, H.P. regarding redistribution of the psots of various categories no post of TDM

existed with respondent/department. It is also denied that petitioner ever approached the respondent

after 20th July, 1998 and raised demand notice in 2013. As such, petitioner is not entitled to any

relief.

5. The petitioner filed rejoinder to reply filed by respondent, reiterated his stand as

maintained in the claim petition.

6. To prove her case, petitioner had examined herself as PW1 tendered/proved her

affidavit Ex. PW1/A under Order 18 Rule 4 CPC, Ex. PW1/B copy of letter dated 6.5.1998, Ex.

PW1/C copy of letter dated 4.9.1986, Mark-A and Mark-B are the copies of representations dated

15.8.2008 and 26.1.2001 respectively, copy of demand notice dated 02.9.2013 and closed evidence.

On the other hand, repudiating the evidence led by petitioner, respondent had examined Shri

Harjinder Singh, Assistant Town Planner, Sub Divisional Town & Country Planning Office,

Chamba, H.P. tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B mandays chart of petitioner,

Ex. RW1/C copy of letter dated 8.7.1998 and closed the evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 12.8.2015 for

determination which are as under:

1.

Whether termination of services of petitioner by the respondent during July/August,

1999 is/was improper and unjustified as alleged?

. .OPP.

2. If issue no.1 is proved in affirmative, to what service benefits the petitioner is entitled

to?

. .OPP.

3. Whether the claim petition is not maintainable in the present form as alleged? . .OPR.

4. Whether the claim petition is bad on account of delay and laches on part of petitioner

as alleged? If so, its effect?

. .OPR.

Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

1764

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Issue No.1 : Yes

Issue No.2 : Discussed

Issue No.3 : No

Issue No.4 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed off simultaneously without repetition of evidence.

11. Ex. RW1/B is the mandays chart showing claimant/petitioner to have worked for 140

days in all in the year 1998 with the respondent/department. In her pleadings, petitioner has

asserted to have worked with the respondent for more than 240 days and made futile attempt to

claim benefit of Section 25-B of the Act but the facts which have got surfaced in evidence remain

that petitioner has merely worked for 140 days and not 240 days which were required to be

established by the claimant/petitioner. In the witness box petitioner has asserted to have remained

employed with the respondent for more than 240 days but in view of oral and documentary

evidence on record as stated above it would be unsafe to hold that petitioner had factually

completed 240 days and was entitled for protection envisaged under Section 25-F of the Act. As

such, claimant/petitioner has failed to establish violation of provisions of Section 25-F of the Act

on the part of respondent and for said reason, there was no requirement of issuance of legal notice

or payment of wages of one month in lieu of notice period.

12. Smt. Renu Vaidya PW1, the petitioner has stepped into witness box deposed on oath as

maintained in claim petition tendered letters dated Ex. PW1/B 6.5.1998 and Ex. PW1/C 4.9.1986

respectively. She has also tendered photocopies of her representations to the department which are

Mark-A and Mark-B on which no action was stated to be taken by the respondent. The grievance of

petitioner thus remains that although she had been representing for her reengagement in service but

respondent department did not pay any heed to her request/representations for reemployment.

Representation Mark ‘A’ pertains to 2008 and Mark ‘B’ pertains to 2001 receipt of which has been

denied by respondent on this ground that those were not received by the respondent at any point of

time. Ld. counsel for the petitioner has contended with vehemence that after termination of the

services of claimant/petitioner demand notice dated 02.9.2013 Ex. PW1/D was issued by petitioner

to respondent which had engaged several other persons junior to petitioner and did not offer

reemployment opportunity thus there was violation of Sections 25-G and 25-H of the Act.

13. Ld. counsel/AR for petitioner has contended with vehemence that in order to attract

provisions of Section 25-G and 25-H, it was not required to be proved that claimant/petitioner had

worked with the respondent for 240 days. In support of his contention, reliance has been placed

upon the judgment of Hon’ble Apex Court reported in 1996 (5) SCC 419 titled as Central Bank of

India vs. S. Satyam in which Hon’ble Apex Court has held that even if the workman has worked

less than 240 days and not discontinued from his service shall be entitled to protection envisaged

under Section 25-G of the Act. In the case in hand before this court, although petitioner is shown to

have worked less than 240 days yet by engaging new draftsman who were junior to her and not

offering her reemployment opportunity clearly violates Sections 25-G as well as 25-H of the Act.

1765

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Reliance is placed on the seniority list dated 16.9.2015 Ex. RA which revealed that several

draftsman had been engaged in particular in the year 2008 Shri Lekh Raj at serial no.1, Shri Bikram

Singh in 1999, S/Sh. Susheel Kumar, Shammi and Dharmender at serial nos. 23 to 25 in the year

2014 and 2015. Since there is no iota of evidence on record establishing that petitioner was offered

opportunity of reemployment this court is left with no option but hold that respondent omitted to

adhere to mandate of Sections 25-H of the Act. Similar view was reiterated by Hon’ble Apex Court

in another judgment titled as State of Haryana vs. Dilbagh Singh reported in 2007 LLR 72.

Applying ratio ratio of both these judgments referred to above, the respondent can be stated to have

violated the provisions of Sections 25-G and 25-H of the Act while removing petitioner from

service.

14. Ld. counsel/AR for the petitioner has relied on judgment of our own Hon’ble High

Court of Himachal Pradesh reported in 2015 (146) FLR 1056 titled as State of Himachal Pradesh

& Ors. and Bego Devi and relevant para is reproduced as under:

“Industrial Disputes Act, 1947-Sections 25-G and 25-H. Retrenchment. Workman has not

completed 160 days, as required. She has completed only 140 days. However, at time of her

retrenchment, juniors were retained. Thus there was violation of section 25-G of Act.

Another one junior to workman was re-employed. Opportunity of re-employment not

afforded to her. Section 25-H is violated. Labour Court allowed the claim of workman

partly. Set aside the retrenchment and ordered reinstatement of workman with seniority and

continuity in service. There is no illegality or perversity in the award”.

Applying the ratio of abovestated judgment to present case, respondent is held to have

violated Section 25-G as well as 25-H of the Industrial Disputes Act.

15. Ld. Dy. D.A. for the State has contended with vehemence that list of draughtsman

relied upon by the counsel/AR for the petitioner has contented that seniority list Ex. RA does not

relate to District Chamba whereas the petitioner was posted in Chamba and seniority of that area

was important but this aspect ceases to be significant as it is nowhere the case of the respondent

that some seniority list has been prepared separately in District Chamba. Thus, non preparation of

seniority list would be manifestly in violation of Section 25-G of the Act in view of judgment of

Hon’ble Apex Court titled as Mackinon Machenize & Company Ltd. vs. Mackinon Employees

Union, reported in 2015 LLR 337 Hon’ble Apex Court has in unambiguous terms has held that

non preparation of seniority list or non displaying of seniority list is breach of Section 25-G of

the Industrial Disputes Act. In view of these facts stated above petitioner was not afforded an

opportunity of reemployment which necessarily violated Section 25-G of Industrial Disputes Act.

No further arguments had been advanced on the point of gainful employment of petitioner by ld.

counsel for petitioner as such, no findings to that effect are given.

16. Accordingly, retrenchment of petitioner by the respondent/department is held to be

illegal and unjustified. Issue in hand is answered accordingly.

ISSUE NO.3

17. 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.

1766

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

ISSUE NO.4

18. Ld. Dy. D.A. representing respondent/department has contended with vehemence that

claim petition is barred by limitation on account of delay and laches. It has been pointed that

termination of petitioner in this case took place on July/August, 2008 and the industrial dispute was

raised after several years of retrenchment. Repudiating the argument by ld. counsel, ld. AR for the

petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble High Court of

H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute may be

considered by court at the time of granting final relief however in various other judgments even

longer delay has been condoned. In Divisional Manager, HPFC & another vs. Garibu Ram,

Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned besides Hon’ble High

Court has held that principle of Limitation Act is not applicable to the industrial dispute. Similar

view was taken by Hon’ble Apex Court in Ajayab Singh vs. Sirhind Cooperative Marketing-

cum-Processing Society Limited and Another, (1999) 6 SCC 82 in which it has been held that

the principle of Limitation Act, 1963 did not apply to the proceeding under the Industrial Disputes

Act. It was observed that the relief under Industrial Disputes Act cannot be denied merely on the

ground of delay. It has been contended that delay if any raised by employer is required to be proved

as a matter of fact and that no reference made by appropriate government can be questioned on the

ground of delay alone. In the case in hand, respondent department has failed to prove on record any

material by which it could be stated that there was inordinate delay which has remained

unexplained due to which any prejudice had been caused to the respondent rather petitioner in his

evidence has highlighted and proved material facts establishing that on account of conciliation

proceeding before authority under Act, industrial dispute was not raised by petitioner immediately

or earlier on retrenchment and finally raised when his services were illegally terminated. Thus, the

petition filed by petitioner cannot be stated to be bad on vice of delay and laches. Issue in question

thus is accordingly answered in negative against respondent and in favour of petitioner.

RELIEF

19. As sequel to my findings on foregoing issues, the retrenchment order of the services of

petitioner is set aside and hereby quashed. The reference/claim petition is partly allowed

accordingly. The respondent is hereby directed to reengage the petitioner forthwith who shall be

entitled to seniority and continuity in service except back wages from the date of issuance of her

demand notice dated 02.9.2013. The parties, however, shall bear their own costs.

20. The reference is answered in the aforesaid terms.

21. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

22. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 23rd day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

1767

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM-

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA, H.P.(Camp at Mandi)

Ref: No. 227/ 2014

Sh. Rakesh Singh s/o Sh. Magan Singh, r/o Village Behna, Tehsil Sadar, District Mandi,

H.P.

. .Petitioner.

Versus

The Employer/Managing Director, M/S Shivansh Motors Private Limited Gutkar, Tehsil &

District Mandi, H.P.

. .Respondent.

29-03-2016 Present: None for the petitioner.

Sh. Udhey Nand, adv. vice of Sh. D.S. Katoch, adv. csl. for the respondent.

As per report of process server agency notice to the petitioner has been served. Case called

several times but none has appeared on behalf of the petitioner despite due knowledge. It is 11.35

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.

____________

29-03-2016 Present: None for the petitioner.

Sh. Udhey Nand, adv. vice of Sh. D.S. Katoch, adv. csl. for the respondent.

Case has been called again several times but none has appeared on behalf of petitioner. It is

2.30 P.M. None appearance of petitioner or his ld.csl. 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.

Announced:

29-03-2016

(K.K.Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Kangra at Dharamshala, H.P.

1768

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 31/2014

Date of Institution : 23.01.2014

Date of decision : 29.03.2016

Shri Kanshi Ram s/o Shri Balkia, r/o Village Neri, P.O. Dogri, Tehsil Sunder Nagar, Distt.

Mandi, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Suket Forest Division, Sunder Nagar, District Mandi, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

“Whether time to time termination of the services of Shri Kanshi Ram, S/O Shri Balkia,

R/O Village Neri, P.O. Dogri, Tehsil Sunder Nagar, District Mandi, H.P. during the year

2008 to 2012 and finally during August, 2012 By the Divisional Forest Officer, Suket

Forest Division, Sunder Nagar, District Mandi, H.P. without complying with the provisions

of the Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back

wages, seniority, past service benefits and compensation the above worker is entitled to

from the above employer?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as set up in the claim petition reveal that the petitioner had worked as beldar

on daily wage basis since 1.7.1999 under the respondent/department in Bandli/Behali Beat under

Forest Range Kangoo and petitioner worked as such upto August, 2012 and was invariably given

fictional breaks in service. It is alleged that the respondent/department had committed various

unfair labour practices in the shape of break in service intermittently although the work had been

taken from the petitioner regularly and without notice and reasons, the services of petitioner had

been terminated w.e.f. 1.9.2012 by an oral order. It is stated that petitioner had not left the job of

his own. It is alleged that respondent/department had appointed 180 junior to the petitioner and

petitioner was not offered for reemployment which was also unfair labour practice and thus

respondent had violated the provisions of Sections 25-G and 25-H of the Industrial Disputes Act,

1947. It is prayed that the respondent be directed not to give fictional breaks in the services to

petitioner and fictional breaks already given in the service records of petitioner be condoned and

petitioner be regularized along-with consequential benefits.

1769

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition become infructuous and bad on account of delay and

laches. On merits admitted that petitioner was initially engaged in forest department in July, 1999

to carryout the seasonal forestry works and as such he worked with the respondent/department

intermittently upto March, 2014. It is alleged that petitioner had not been given any fictional breaks

in his service but petitioner had left the job of his own sweet will however as and when petitioner

had approached the respondent, his services had been utilized by the respondent/department. It is

claimed that petitioner was still continuing to work intermittently with the department thereafter the

question of fictional breaks given to the petitioner did not arise. Asserted that the forest work was

seasonal in nature and only casual labourer were engaged by the department on the basis of need of

work and availability of funds and disengaged after completion of work or its funds. Thus,

petitioner is stated to be still working as casual labourer on various seasonal forestry works

although he had not completed240 days of work so far in any of calendar year. It is emphatically

denied that any fictional breaks were given to petitioner with the object that he did not get the

benefit of the provisions of the Industrial Disputes Act. It is stated that the petitioner had not

reported for duty as per his own sweet will. Thus, petitioner is stated to be not entitled to any relief.

Accordingly, petition was sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC and closed evidence. On the other hand, repudiating the

evidence led by petitioner, respondent had examined Dr. L.C. Bandana, Divisional Forest Officer,

Suket Forest Division, Sundar Nagar as RW1 tendered/proved her affidavit Ex. RW1/A, Ex.

RW1/B the mandays chart of petitioner and closed evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed 10.11.2015 but were

recasted on 29.3.2016 for determination which are as under:

1. W hether time to time termination of services of petitioner by respondent is illegal and

unjustified as alleged. If so, its effect?

. .OPP.

2. Whether the services of petitioner were finally terminated during August, 2012 by the

respondent is illegal and unjustified as alleged?

. .OPP.

3. Whether the claim petition is not maintainable in the present form?

. .OPR.

4. Whether the petition is bad on account of delay and laches as alleged. If so, its effect?

. .OPR.

5. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : Redundant.

1770

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Issue No.3 : No

Issue No.4 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that petitioner in the opening line of cross

examination on oath has admitted that he was working with the respondent on the date when his

statement was recorded on oath on 9.12.2015 which falsifies the plea of final termination of

petitioner moreso when petitioner has admitted to be still working with the respondent. As per

mandays chart Ex. RW1/A on record, petitioner has not worked for more than 240 days from

1.7.1999 to August, 2012. Thus, provisions of Section 25-F of the Industrial Disputes Act are held

to have not been flouted by respondent while terminating service of petitioner. For the said reason,

there was no necessity of notice or wages of one month in lieu of notice period.

12. Stepping into the witness box as PW1, petitioner has sworn in his affidavit Ex. PW1/A

under Order 18 Rule 4 CPC stipulating therein the manner in which he was engaged and continued

to work uninterruptedly with the respondent/department besides petitioner was still working with

the respondent. He admitted that he had agricultural land.. It is also stated that the fictional breaks

had been given by respondent with the object that petitioner did not complete 240 days of work for

the purpose of continuous service and that due to fictional breaks in years 2008 till 2012, petitioner

could not complete 240 days.

13. Ex. RW1/B is the mandays chart of petitioner reflecting that he had been appointed in

the month of July, 1999 and was still working when the claim petition was filed. The contents of

this document revealed mandays chart showing petitioner to have worked for 165 days in the year

1999, 144 days in 2000, 215 days in 2001, 186 days in 2002, 65 days in 2003, 8 days in 2004, 155

days in 2008, 192 days in 2009, 137 days in 2010, 166 days in 2011, 31 days in 2012 and 230 days

in 2013. Ld. AR for the petitioner maintained that the respondent had not produced any seniority

list. This goes to show that respondent despite being responsible to maintain seniority list of

employees/beldars working under it had failed to tender such records before the court establishing

that as to who were the workers junior to the petitioner or the manner in which provisions of

Sections 25-G and 25-H of the Industrial Disputes Act were complied with. Ld. counsel for

petitioner has relied upon the judgment of Hon’ble Supreme Court reported in 2015 LLR 337 titled

as Mackinon Machenize & Company Ltd. vs. Mackinon Employees Union, in which Hon’ble

Apex Court has held that non preparation of seniority list or non displaying of seniority list is

breach of Section 25-G of the Industrial Disputes Act. Not only this, respondent RW1 who is

contesting on behalf of the respondent/department in cross-examination had shown his ignorance

about juniors are to be working with the petitioner who had since been regularized. Similarly, she

has also shown his ignorance on the fact that persons junior to the petitioner were working with the

department. Thus, evasive replies given by RW1 clearly indicate that respondent was not deposing

according to factual record available with the department. Not only this, the cross-examination of

RW1 reveals that the seniority list of daily wages was not prepared and there was no plausible

explanation from the respondent side which strengthens the case of the petitioner and also in view

of Hon’ble Apex Court in Mackinon’s case (supra). In view of the same when workers were

1771

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

juniors to the petitioner as contended by the petitioner himself were retained by

respondent/department and that seniority list was admittedly not prepared as deposed by RW1, this

court is left with no option but to hold that respondent has deliberately violated the provisions of

Section 25-G of the Industrial Disputes Act. Since, there is non availability of seniority list from

2008 to 2012 as aforestated the respondent had also violated the provisions of Section 25-H of the

Industrial Disputes Act, moreso when there is no iota of evidence on being petitioner was ever

given offer of reemployment.

14. It is the admitted case of the parties that services of petitioner were engaged as daily

wager by respondent in the month of July, 1999 which finds supports from mandays chart Ex.

RW1/B. Be it noticed that the respondent has not placed/exhibited or filed any document

establishing that the services of petitioner were engaged for undertaking forestry works only

although petitioner in crossexamination admitted that forest department was seasonal work.

Otherwise also, the mandays chart unfolds the fact that petitioner had worked for 165 days in the

year 1999, 144 days in 2000, 215 days in 2001, 186 days in 2002, 65 days in 2003, 8 days in 2004,

155 days in 2008, 192 days in 2009, 137 days in 2010, 166 days in 2011, 31 days in 2012 and 230

days in 2013 and therefore when petitioner had served respondent for more than 150/200 days in

several calendar years as per mandays chart referred to above it could not be concluded in any

manner that petitioner was a seasonal worker instead the plea so raised by respondent manifestly

establishes that in order to escape liability, plea of forestry work being seasonal in nature has been

set up by respondent. It is nowhere in evidence of respondent that forest department has been

declared as seasonal worker as required under the law.

15. It is settled principle of law that plea of ‘abandonment’ has to be proved like any other

fact by respondent/department. Simply because workman fails to report for duty cannot be

construed to mean that workman has abandoned the job. There is no iota of evidence on record

establishing that any notice was issued or served to petitioner by respondent when he had absented

from duty calling upon him to resume duty or explain the cause for his unauthorized absence as

absence from duty is serious misconduct requiring initiation of departmental proceedings before

any taking action against workman Again there is no iota of evidence showing that the respondent

had initiated any action in the absence of petitioner from duty. It is evident from record that no

explanation of petitioner was called even no show cause notice was issued by respondent qua

absence of petitioner from duty from time to time when he absented as per the mandays referred to

above. Thus, the plea of abandonment or absence from duty put forth by the respondent also merits

rejection being devoid of merits.

16. It has also come in the evidence that muster roll had not been issued for whole month

in a year. Even in some months muster rolls were not at all issued. No muster roll was issued as

petitioner is shown to have not been given any work. It is evident from the mandays chart Ex.

RW1/B that petitioner was engaged and disengaged whimsically in arbitrary manner without

cogent reason and that no letter or notice whatsoever had been issued qua any non attendance and

as such the case of petitioner having been given fictional breaks by respondent/department cannot

be disbelieved. In view of foregoing evidence on record it can be safely concluded that

artificial/fictional breaks in service was provided to petitioner by respondent from 2008 to 2012

which is an unfair labour practice within the meaning of Industrial Disputes Act and the break

period has to be counted for the purposes of “continuous service” envisaged under Section 25-F of

the Act.

17. Another aspect of the case which cannot be lost sight while appreciating evidence on

record is that junior workmen were allowed to be retained and that petitioner was disengaged

arbitrarily by respondent in violation of Section 25-G of the Act. Examination of RW1, the then

Divisional Forest Officer on oath revealed that so many juniors were retained in service leading to

1772

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

inference that while retrenching petitioner, junior workmen were allowed to be retained in service

which showed arbitrary and whimsical manner in which petitioner was disengaged ignoring his

seniority. Be it noticed that despite contesting respondent representing forest department has given

evasive replies showing his ignorance it after 1999 new beldars or co workers were appointed such

statement on part of respondent has to be interpreted in favour of petitioner and against respondent.

Ld. AR/counsel for the petitioner has contended that for applicability of Section 25-G of the Act, it

is not necessary that the petitioner should have worked for 240 days atleast in a calendar year as has

also been held by Hon’ble Apex Court in case titled as Central Bank of India vs. S. Satyam, 1996

(5) SCC 419. That being so, the relief sought for by petitioner is liable to be granted in view of

violation of the provisions of Section 25-G of the Act by respondent. Thus, petitioner/claimant has

succeeded in establishing that fictional breaks had been given to petitioner illegally by respondent

due to which he could not complete 240 days in any calendar year more-so when respondent had

failed to prove allegation of abandonment as stated above. It is accordingly held that respondent

had given fictional breaks from time to time to the petitioner which is illegal and unjustified as has

come in the evidence. As the petitioner himself has not discharged initial onus qua remaining

unemployed during break period, so he cannot be awarded back wages however petitioner is

entitled to relief of continuity in service from the years 2008 to 2012 as well as seniority except

back wages for the reasons stated hereinabove. Issue no.1 is thus answered in affirmative whereas

issue no.2 is answered in negative.

ISSUE NO.3

18. Ld. Dy. D.A. representing State/respondent department has contended that claim

petition is not maintainable. As has come in my findings in foregoing paras that respondent had

deliberately given fictional breaks to petitioner by not issuing any muster roll for the whole month

in a calendar year, it cannot not be stated that the petitioner cannot claim that the period of fictional

break be counted in his services under Section 25-B of the Industrial Disputes Act. Otherwise also,

it is not specifically mentioned in what manner the claim petition is not maintainable. Since

petitioner is a workman working with the respondent who had been given fictional breaks, as stated

in foregoing paras, with the object that he did not complete 240 days, the claim petition cannot be

stated to be not maintainable. Issue in hand is answered in negative in favour of petitioner and

against respondent.

ISSUE NO.4

19. Ld. Dy. D.A. for State contended that there is inordinate delay on the part of petitioner

when filed the claim petition or raised industrial dispute due to which he is not entitled any relief. It

may not be erroneous to mention here that petitioner has been continuously working with the

respondent and the fictional breaks were given to him of and on by the respondent through its

subordinate official for which he raised industrial dispute. The fictional breaks are stated to have

been given from 2008 to 2012. Be it noticed that in cross-examination of petitioner by respondent

no question on delay has been asked. Even from facts in evidence no inference of delay and laches

can be drawn. Accordingly, it is held that claim petition is not bad on account of delay and laches

which is also supported by the judgment of Ajayab Singh vs. Sirhind Co operative Marketing-

cum-Processing Society Limited and Another, (1999) 6 SCC 82. Accordingly, issue in hand is

answered in negative in favour of petitioner and against respondent.

RELIEF

20. As sequel to my findings on foregoing issues, petitioner is held to be in continuous

uninterrupted service with the respondent from year 2008 to 2012 and that the breaks given by the

respondent being fictional in nature shall have no effect on the seniority and continuity of service of

1773

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

the petitioner. Accordingly, claim petition is hereby allowed in part and reference is accordingly

answered in favour of petitioner. The petitioner shall thus be deemed to be in continuous service of

respondent as stated above with all consequential benefits except back wages. The parties,

however, shall bear their own costs.

21. The reference is answered in the aforesaid terms.

22. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

23. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 29th day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

___________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 72/2014

Date of Institution : 22.02.2014

Date of decision : 29.03.2016

Shri Ramesh Chand s/o Shri Rattan Chand, r/o Village Chalela, P.O. Nakrana, Tehsil Shri

Naina Deviji, District Bilaspur, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Wild Life Division, Hamirpur, District Hamirpur, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner :

Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1.

The following reference has been received from the appropriate Government for

adjudication:

“Whether termination of the services of Shri Ramesh Chand S/o Shri Rattan Chand, R/O

Village Chalela, P.O. Nakrana, Tehsil Shri Naina Deviji, District Bilaspur, H.P. during

1774

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

April, 2011 by the Divisional Forest Officer, Wild Life Division, Hamirpur, District

Hamirpur, H.P., without complying with the provisions of the Industrial Disputes Act, 1947

is legal and justified? If not, what amount of back wages, seniority, past service benefits and

from which date the above worker is entitled to from the above employer?”

2.

In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as stipulated in the claim petition reveal that claimant/petitioner

abovenamed had been engaged as daily wager in November, 2005 by Range Forest Wild Life Shri

Naina Deviji, District Bilaspur, H.P. where he continued to worked till April, 2011. The grievance

of petitioner remains that respondent had without any rhyme and reason and serving any notice

orally terminated his services in April, 2011. It is alleged that in May, 2011 respondent had stopped

muster roll however he continued to engage junior workers which was unfair labour practice. It is

specifically alleged that ignoring the rights of claimant/petitioner respondent had not prepared

seniority list of daily waged workers as on 31st July, 2007 by not issuing or reflecting his name in

the seniority list according to which several workers namely S/Sh. Suresh Kumar, Hari Singh,

Hukkam Chand, Smt. Raksha Devi, Rajeev Kumar, Smt. Laxmi Devi, Raksha Devi, Rajesh Kumar,

Smt. Usha Devi, Bachnu Ram, Lala Ram, Pawan Kumar, Suresh Lal, Sarvjeet Singh, Sunil Kumar,

Ashok Kumar, Madan Lal, Rajesh Kumar,, Sudesh Kumar, Balwant Singh, Anil Kumar, Satpal

Singh, Pratap Chand, Ravinder Kumar, Bantu Singh, Sant Ram, Pankaj Walia, Vijay Kumar,

Rajesh Kumar, Naresh Kumar, Aman Kumar, Parveen Kumar and Surinder Kumar were still

employed and were junior to him. Thus, alleging respondent to have not followed the principle of

‘last come first go’ envisaged under Section 25-H and 25-G of the Industrial Disputes Act, 1947

services of petitioner were disengaged. At the same time, provisions of Section 25-F too had not

been followed which was also an unfair labour practice. The petitioner further alleges that he was

unemployed who had no source of income of livelihood. Accordingly, petitioner prays for

reinstatement with full back wages and all consequential relief admissible to him.

4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability, petition being bad on account of delay and laches. On merits admitted

that petitioner had been engaged initially in November, 2005 in Shri Naina Deviji Wild Life Range

as casual labourer where seasonal work was being carried out through volunteer and local villagers

and that petitioner was never engaged as daily wager and therefore question of retrenching him

from work did not arise. It is also contended that petitioner had been attending work given to him

intermittently as was also clear from mandays chart. It is specifically alleges that petitioner was not

attending the work regularly rather he visited site of work as per his own convenience and that no

fictional breaks had ever been given by the respondent/department. It also remains the case of

respondent that the work which was being carried out in Shri Naina Deviji Wild Life Bilaspur was

seasonal work and due to said reason question of working of petitioner as daily wager did not arise.

It is admitted that name of the petitioner did not figure in the seniority list due to the reason that

petitioner was employed as casual labourer and had not worked continuously and uninterruptedly.

It has been emphatically denied that petitioner had worked for 240 days in any calendar year

immediately preceding his termination and for said reason there was no violation of provisions of

Section 25-F of the Industrial Disputes Act. Since the petitioner himself has abandoned the work

who had not completed 240 days, there was no requirement of showing his name in the seniority

list or serving him any notice or paying wages of one month in lieu of wages under Section 25-F of

the Industrial Disputes Act. The petitioner is stated to have been gainfully employed as he himself

was engaged in agricultural work who had cultivable land. Accordingly, petition was sought to be

dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition

and contentions raised by the respondent had been denied by petitioner.

1775

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC, Ex. PW1/B copy of order dated 18.10.2014 passed in CWP

No.2261/2014, seniority list Ex. PW1/C and closed evidence. On the other hand, repudiating the

evidence led by petitioner, respondent had examined Shri H.K. Sarwata, Divisional Forest Officer,

Forest Division Bilaspur as RW1 tendered/proved her affidavit Ex. RW1/A, mandays chart Ex.

RW1/B, Ex. RW1/C copy of seniority list and closed evidence.

7.

I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed bymy ld. Predecessor on

16.7.2014 for determination which are as under:

1. Whether the termination of the services of Sh. Ramesh Chand (petitioner) during April,

2011 by the Divisional Forest Officer, Wild Life Division, Hamirpur, Distt. Hamirpur,

H.P. is illegal and unjustified, as alleged?

. .OPP.

2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to back wages,

seniority, past service benefits as prayed for?

. .OPP.

3. Whether the petition is not maintainable in the present form?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No. 2 : Discussed.

Issue No. 3 : No

Relief :

Petition is allowed in part per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NO. 1 AND 2

10. Both these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

11. At the outset, it is apt to mention here that mandays chart Ex. RW1/B relied upon by

the respondent reflected total number of days for which petitioner worked from 2001 to 2011. As

per this document on record petitioner is shown to have not worked even for single day in the years

2001 to 2004 however he is shown to have worked for 19 days in the month of November, 2005

and thereafter did not work with the respondent. Mandays chart further shows that petitioner had

worked for 35 days in 2007, 46 days in 2008, 59 days in 2009, 87 days in 2010 and 15 days in

2011. A bare glance on this document would reveal that petitioner had not worked 240 days w.e.f.

2001 to 2011 in any of the years. It can be seen from aforestated evidence that petitioner had

worked for 15 days in the year he was allegedly terminated and even its preceding year he had

worked for 87 days. As such, in both the years petitioner had worked for 102 days. As such, plea of

having worked for 240 days gets falsified from evidence on record.

1776

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

12. In so far as violation of principle under Section 25-G and Section 25- H of the

Industrial Disputes Act are concerned, it would be relevant to mention here that Ex. PW1/C and Ex.

RW1/C are the same document i.e. seniority list of the daily wagers from 1999 onwards to

31.7.2010 in respect of Wild Life Division Hamirpur. This document shows that name of petitioner

did not figure in seniority list of Wild Life Division Hamirpur but that does not demolish the case

of petitioner in entirety. The fact that about 17 workers whose names enumerated in para no.5 of

the affidavit Ex. PW1/A being junior and still employed has not been repudiated by Ld. Dy. D.A.

while cross-examining the petitioner. On the other hand, respondent RW1 Shri H.K. Sarwata in his

cross-examination denied that according to seniority list 11 persons were junior to petitioner. He

has admitted that his signatures exists on seniority list of daily wagers in respect of Bilaspur Forest

Division as it existed on 31.12.2014 and it did not reveal the name of petitioner. Although, admitted

that the petitioner had been engaged in the year 2005.

13. Minor scrutiny of testimony of RW1 further reveal that petitioner had been initially

engaged in Hamirpur Forest Division whereas petitioner was initially engaged by Forest Range

Officer, Shri Naina Deviji but this aspect was under the consequence on the merits of case in as

much as respondent in its reply nowhere alleged about bifurcation of Division of Hamirpur

Division and Bilaspur. In Mackinon Machenize & Company Ltd. vs. Mackinon Employees

Union, reported in 2015 LLR 337 in which Hon’ble Apex Court has unambiguous terms held that

non preparation of seniority list or non displaying of seniority list is breach of Section 25-G of

the Industrial Disputes Act. By not including or reflecting name of petitioner respondent had

recoursed to unfair labour practice. As has come in the evidence of the parties that in the seniority

list relating to Hamirpur Division, the name of petitioner has not been reflected in the list Ex. P1

prepared by respondent himself. Similarly, there is no such list exist for Bilaspur Division clearly

vitiate of provisions of Section 25-G of the Industrial Disputes Act in view of law laid down by the

Hon’ble Apex Court (2015 supra). Otherwise also from testimony of petitioner coupled with

seniority list are irresistible inference which may be drawn is that several junior persons whose

names were mentioned in para no.5 of affidavit of petitioner were still working with the respondent

whereas the services of petitioner were terminated without serving any notice by the respondent.

Thus, principle of ‘Last come First go’ envisaged under Section 25-G was not followed. Similarly,

while recruiting or engaging new hands even petitioner was not offered an opportunity to work

rather respondent in his reply admitted that he failed to enter the name of the petitioner while

preparing seniority list of Wild Life Bilaspur Division claiming that nature of work was seasonal in

nature and consequently petitioner abandoned the job of his own who used to attend the work

intermittently on his own whims and convenience and thus respondent has not issued any notice

calling upon the petitioner to join of his duties but from evidence of respondent no inference of

abandonment can be drawn which was to be proved like any other fact by leading cogent evidence.

Having not issued any legal notice to the petitioner cannot be stated to have abandoned the job and

for said reason plea of petitioner deserves to be accepted that services of petitioner have been

illegally terminated in the year 2011. It is settled law for applicability of Section 25-G of Industrial

Disputes Act petitioner is not required to prove having worked for 240 days in a year as has been

held by Hon’ble Apex Court in Central Bank of India vs. S. Satyam, 1996 (5) SCC 419. Thus, in

case in hand although petitioner has factually not worked for 240 days yet he would be entitled to

provisions of Section 25-G of Industrial Disputes Act. In view of the foregoing discussions, it is

held that petitioner has failed to prove violation of provisions of Section 25-F of the Industrial

Disputes Act however petitioner has duly proved violation of Section 25-G and Section 25-H of the

Act by the respondent. Issue no.1 is thus answered in affirmative holding that termination of

services of petitioner during April, 2011 by Divisional Forest Officer, Hamirpur is illegal and

unjustified being in violation of provisions of Sections 25-G and 25-H of Industrial Disputes Act.

14. With regard to source of income of petitioner ever since termination of his services, it

is relevant mention here that petitioner although in claim petition as well as affidavit has mentioned

1777

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

that he remained unemployed who had no source of income whatsoever but in the witness box in

his cross-examination, he has admitted that he had 4-5 bighas cultivable land on which he did

cultivation work. Thus, petitioner had sufficient and reasonable income from agricultural pursuits

who cannot be stated to be not gainfully employed. However, keeping in view the manner

petitioner was verbally disengaged from his job, he would be liable to reinstatement by the

respondent with his seniority and continuity in service except back wages. Both these issues are

answered accordingly.

ISSUE NO.3

15. 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

16. As sequel to my findings on foregoing issues, the reference/claim petition is allowed in

part. The respondent is hereby directed to re-engage the petitioner forthwith. The petitioner shall be

entitled to seniority and continuity in service from the date of his illegal termination except back

wages. The parties, however, shall bear their own costs.

17. The reference is answered in the aforesaid terms.

18. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

19. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 29th day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

____________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 08/2013

Date of Institution : 22.01.2013

Date of decision : 30.03.2016

Shri Khem Raj s/o Shri Dila Ram, r/o Village Neri, P.O. Doghri, Sub Tehsil Nihri, District

Mandi, H.P.

. .Petitioner.

1778

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

Versus

The Divisional Forest Officer, Sunder Nagar, District Mandi, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. S.S. Sippy, AR

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

1.

The following reference has been received from the appropriate Government for

adjudication:

“Whether termination of the services of Sh. Khem Raj, S/O Sh. Dila Ram, Village Neri,

P.O. Doghri, Sub-Tehsil Nihri, Distt. Mandi, H.P. from time to time during 1999 to 2010 by

The Divisional Forest Officer, Sunder Nagar Distt. Mandi, 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 Ex- Worker is

entitled to from the above employer?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Briefly stated the facts of the case are that applicant (hereinafter called as petitioner)

was engaged as daily waged beldar by forest department at the Forest Range Kangoo on 1.5.1998

where he worked continuously till 2008 when his services were illegally terminated vide oral order

of the official of the respondent. The petitioner alleges that thereafter he joined as daily waged

beldar on 12.6.2009 and was given fictional breaks on 5.6.2009 without oral or any written order.

Similarly, petitioner was again given fictional breaks on 6.1.2010 and asked to join on 11.1.2010

followed by another fictional break given on 30.1.2010 and later asked to join on 7.2.2010 and

since than petitioner has been working continuously. The petitioner claims that he has served the

respondent/department without break and for more than 240 days. The artificial break and illegal

oral termination order, the juniors of the petitioner had been regularized whereas services of

petitioner were terminated intermittently. The grievance of petitioner remains that respondent had

not adhered to the principle of ‘Last come First go’ envisaged under Section 25-H of Industrial

Disputes Act and also no notice was given at the time of his illegal termination. Accordingly,

petitioner prays that the period of fictional break be declared illegal, unjustified be deemed to be as

in continuous service of the petitioner and fictional breaks given by ignoring principle of ‘Last

come First go’ envisaged under Section 25-G of the Act also be followed. Thus, prayer has been

made by the petitioner for his reengagement as beldar in the same place in the same capacity as he

was at the time of illegal disengagement with all consequential benefits including seniority, work

charge status and regularization.

4. The respondent resisted claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

stated that the petitioner was initially engaged as casual labourer to carryout the seasonal forestry

works in January, 1999 where he had worked upto March, 2003. It is contended that petitioner was

an intermittent worker who had not been disengaged rather petitioner of his own left the work and

never worked from April, 2003 to May, 2008 as is evident from mandays chart. It is also alleged

that petitioner remained absent continuously for several years and thereafter he joined work in

1779

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

June, 2008. It is also contended that petitioner had not worked for continuously for 240 days since

the date of his initial engagement which is clear from the mandays chart besides denied any

fictional breaks having been given by the respondent to the petitioner with objects that the

petitioner had not completed 240 days in a calendar year. It is asserted that the services of only

those daily waged labourers were regularized who had completed eight years of continuous service

with minimum of 240 days in each calendar year per policy of the State Government. It is also

pleaded that respondent/department has duly adhered to the principle of ‘Last come First go’ and

that the petitioner was still working as casual labourer with respondent/department. Accordingly,

the petition was sought to be dismissed.

5. No rejoinder to the reply was filed by the petitioner as is evident from order dated

25.2.2014.

6. To prove his case, petitioner had examined himself as PW1 tendered/proved his

affidavit under Order 18 Rule 4 CPC as Ex. PW1/A, Ex. PW1/B is the seniority list, Ex. PW1/C is

the mandays chart and closed evidence. On the other hand, repudiating the evidence led by

petitioner, respondent had examined Shri Ajit Kumar Thakur, the then Divisional Forest Officer,

Sundar Nagar as RW1 tendered/proved his affidavit Ex. RW1/A, Ex. RW1/B the mandays chart of

petitioner, Ex. RW1/C is the seniority list and closed evidence. On additional evidence during the

pendency of the claim petition, petitioner moved application for additional evidence which was

allowed and in pursuance to which petitioner had tendered/proved Ex. X1 to X6. This list addressed

to various forest officials who were junior to petitioner and their services shown to have been

regularized. The respondent does not lead any evidence in response to additional evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed by my ld. Predecessor on

25.2.2014 for determination which are as under:

1. Whether time to time termination/giving breaks in service to the petitioner by the

respondent from the years 1999 to 2010 is/was illegal and unjustified as alleged?

. .OPP.

2. Whether the claim petition is not maintainable in the present form?

. .OPR.

3. Whether the petition is hit by the vice of delay and laches as alleged. If so, its effect?

. .OPR.

4. Relief.

9. For the reasons to be recorded hereinafter while discussing the aforesaid issues, my

findings on the aforesaid issues are as follows:

Issue No.1 : Yes

Issue No.2 : No

Issue No.3 : No

Relief :

Petition is allowed in part per operative part of the Award.

1780

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

REASONS FOR FINDINGS

ISSUE NO. 1

10. Stepping into the witness box as PW1, petitioner has sworn in his affidavit Ex. PW1/A

under Order 18 Rule 4 CPC stipulating therein the manner in which he was engaged and continued

to work uninterruptedly under the supervision of Range Officer, Kangoo upto 2010 and his services

had been engaged and disengaged by the respondent/department by giving fictional breaks to

petitioner besides maintained that the fictional breaks had been given by respondent with the object

that petitioner did not complete 240 days of work for the purpose of continuous service and that

due to these fictional breaks from 1999 till 2010 besides denied that petitioner had not worked for

2004 to May, 2008 although admitted that petitioner had worked after 2012 with the respondent. Be

it noticed that in cross-examination petitioner has denied that the respondent had not kept any

junior to him.

11. Ex. RW1/B is mandays chart of petitioner reflecting that he had been appointed in the

month of January, 1999. The contents of said document revealed abstract of working mandays

showing that petitioner to have worked for 180 days in 1999, 186 days in 2000, 233 days in 2001,

179 days in 2002, 69 days in 2003, 148 days in 2008, 199 days in 2009, 141 days in 2010, 166 days

in 2011, 222 days in 2012. Be it stated that petitioner has admitted that department/respondent had

regularized the services of only those workers who had fulfilled the conditions but the case of

petitioner primarily remains that he had been given fictional breaks and that co-workers who were

junior to him were retained whereas he was not issued muster roll for whole month. It would,

therefore, apt to scrutinize entire evidence so as to determine if fictional breaks had been given with

the object that petitioner did not complete 240 days in a given year and thus could not avail benefit

of Section 25-B of the Industrial Disputes Act.

12. It is the admitted case of the parties that services of petitioner were engaged as daily

wager by respondent in the month of January, 1999 as claimed by him. This facts find support from

mandays chart Ex. RW1/B. Be it noticed that the respondent has not placed/exhibited or filed any

document establishing that the services of petitioner were engaged for undertaking forestry works

only. Otherwise also, the mandays chart referred to above unfolds the fact that petitioner had

worked for 180 days in 1999, 186 days in 2000, 233 days in 2001, 179 days in 2002, 69 days in

2003, 148 days in 2008, 199 days in 2009, 141 days in 2010, 166 days in 2011, 222 days in 2012

and therefore when petitioner had served respondent for more than 150 days in several calendar

years as per mandays chart it could not be construed that petitioner was a seasonal worker instead

the plea so raised by respondent manifestly establishes that in order to escape liability, plea of

forestry work being seasonal in nature has been taken. It is nowhere in evidence of respondent that

forest department has been declared as seasonal work so far as required under the law.

13. It is settled principle of law that plea of ‘abandonment’ has to be proved like any other

fact by respondent/department. Simply because workman fails to report for duty intermittently

cannot be construed to mean that concerned workman has abandoned the job. There is no iota of

evidence on record establishing that any notice was ever issued or served to petitioner by

respondent when he had absented from duty calling upon him to resume duty or explain the cause

for his unauthorized absence as absence from duty is serious misconduct requiring initiation of

departmental proceedings before taking any action against workman. Again there is no iota of

evidence showing that the respondent had initiated any action in the absence of petitioner from

duty. It is evident from record that no explanation of petitioner was called even no show cause

notice was issued by respondent qua absence of petitioner from duty from time to time when he

absented as per the mandays referred to above. Thus, the plea of abandonment or absence from

duty put forth by the respondent also merits rejection being devoid of merits.

1781

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

14. Ld. Dy. D.A. representing respondent has taken through in the crossexamination of

petitioner wherein has admitted that he had not worked with the respondent w.e.f. 2004 to 2008 and

at the same time he has also admitted correctness of mandays chart Ex. RW1/B. On going through

the testimony of petitioner as PW1, it is evident that although petitioner has admitted in

crossexamination that he did not work from January, 2004 to May, 2008 but clarified by submitting

that the respondent/department had removed him from service. So no fault can be found for the

absence of the petitioner from January, 2004 to May, 2008. Thus, from the oral as well as

documentary evidence on record, it is evident that the services of petitioner was engaged and

disengaged whimsically retaining juniors and giving fictional breaks to petitioner which entitles

him for relief claimed by him. Accordingly, it is held that respondent had given fictional break to

petitioner from 1999 to 2010 which is unfair labour practice and this period is to be counted for the

purpose of ‘continuous service’ envisaged under Section 25-B of the Industrial Disputes Act.

15. Another aspect of the case which cannot be lost sight while appreciating evidence on

record is that junior workmen were allowed to be retained and that petitioner was disengaged

arbitrarily while giving fictional breaks by respondent in violation of Section 25-G of the Act. It is

evident from the seniority list that after engagement of petitioner workers who were junior to him

had been engaged some of them have been regularized which goes to show that these workers had

not been given any break in their service. Thus when petitioner who was senior to these junior

workers had given fictional breaks, the action of the respondent primarily reflects arbitrariness and

whimsical manner and picking few workmen for work and is ignored. It has been contended by the

ld. Authorized Representative of petitioner that break given during 1999 to 2010 was deliberate on

the part of respondent with the object that petitioner did not completed 240 days entitled him

benefit of Section 25-B of the Industrial Disputes Act and manifestly in the nature of fictional

breaks. In view of foregoing evidence on record it can be safely concluded that artificial/fictional

breaks in service was provided to petitioner by respondent from 1999 to 2010 is primarily an unfair

labour practice within the meaning of Industrial Disputes Act and the break period has to be

counted for the purposes of “continuous service” envisaged under Section 25-B of the Act. Ld. AR

for the petitioner has contended that for applicability of Section 25-G of the Act, it is not necessary

that the petitioner should have worked for 240 days atleast in a calendar year as has also been held

by Hon’ble Apex Court in case titled as Central Bank of India vs. S. Satyam, 1996 (5) SCC 419.

That being so, the relief sought for by petitioner is liable to be granted in view of violation of the

provisions of Section 25-G of the Act by respondent. Thus, petitioner/claimant has succeeded in

establishing that fictional breaks had been given to petitioner illegally by respondent due to which

he could not complete 240 days in any calendar year more-so when respondent had failed to prove

allegation of abandonment as stated above. It is accordingly held that respondent had given

fictional breaks from time to time to the petitioner as stated above which is illegal and unjustified

as has come in the evidence. As the petitioner herself has not discharged initial onus qua remaining

unemployed during break period or not gainfully employed, so he cannot be awarded back wages

however petitioner is entitled to relief of continuity in service from the date of initial engagement as

well as seniority except back wages for the reasons stated hereinabove. Issue no.1 for the

aforestated reason is answered in affirmative in favour of petitioner and against respondent.

ISSUE NO.2

16. Ld. Dy. D.A. representing State/respondent department has contended with vehemence

that claim petition is not maintainable. As has come in my findings in foregoing paras that

respondent had deliberately given fictional breaks to petitioner by not issuing any muster roll for

the whole month in a calendar year, it cannot not be stated that the petitioner cannot claim that the

period of fictional break be counted in his services under Section 25-B of the Industrial Disputes

Act. Otherwise also, it is not specifically mentioned in what manner the claim petition is not

maintainable. Since petitioner is a workman working with the respondent who had been given

1782

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

fictional breaks, as stated in foregoing paras, with the object that he did not complete 240 days, the

claim petition cannot be stated to be not maintainable. Issue in hand is answered in negative in

favour of petitioner and against respondent.

ISSUE NO.3

17. Ld. Dy. D.A. representing state respondent has contended that petition so filed was bad

on account of delay and laches. It is evident from findings in foregoing paras that petitioner was

given fictional breaks from 1999 to 2010 which was not within knowledge of petitioner. It seems

that when workmen junior to petitioner had been regularized, he come to know about intermittent

breaks. The matter was brought to notice of Conciliation Officer where it did not materialize and

consequently Labour Commissioner made reference to this court. Ld. counsel for petitioner, on the

other hand, has maintained that no prejudice had been caused to petitioner. Moreover, not a single

question has been asked by ld. Dy. D.A. on delay to the petitioner. As such, delay which is not

questioned stands explained as stated above. Otherwise also, plea of delay or limitation would not

eclipse claim of petitioner in any manner. It is settled preposition of law that in case a dispute is

referred to for determination, the Court will have to return a finding on merits and the delay in

raising the dispute may be considered by the Court at the time of granting the final relief, as has

been held by our own Hon’ble High Court in Bhatag Ram’s case (2007 LHLJ 903). In Divisional

Manager, HPFC & another vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, the delay of more

than 10 years was held to have not come in the way of the workman whose services were illegally

terminated by holding that the provisions of Limitation Act is not applicable to industrial dispute

but however, depending upon the facts and circumstances of each case, the principle of delay and

laches have to be seen and applied. In Deepa Ram vs. State of H.P. and Ors., 2005 (1) Himachal

Law Journal 248, there was a delay of 12 years. In Ramesh Chand vs. Union of India, CWP

No. 812 of 2000, there was a delay of 9 years. In CWP No. 95 of 2000 titled as Divisional

Manager vs. Mohinder Kumar, there was a delay of 14 years. In Naginder Kumar vs. HPSEB

and anr. 2008 (1) SLJ (H.P.) 425, it has been held by the Hon’ble High Court of H.P. that the

Labour Court cannot dismiss the claim on the ground of delay and laches once the same has been

referred by the State Government and the Labour Court is bound to decide the reference which was

made by the State Government and same is required to be adjudicated upon the merits without

touching the aspect of delay and laches. The Hon’ble Apex Court in the Bombay Gas Co. Ltd. vs.

Gopal Bhiva & Ors, AIR 1964 SC 752, has categorically held that as such of all those employees,

who are entitled to take the benefit of Section 33-C (2) may not always be conscious of their rights

and it may not be right to put the restriction of limitation in respect of claim which they may have

to make under the provision and in absence of any provision for limitation, it may not be open to

the Court to introduce the limitation on the ground of fairness and justice. In Ajayab Singh vs.

Sirhind Co-operative Marketingcum- Processing Society Limited and Another, (1999) 6 SCC

82, it has been observed by the Hon’ble Supreme Court that:

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the proceeding

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”.

18. No material has been placed on record by the respondents to establish that there was

inordinate delay on the part of the petitioner in raising the dispute in the instant case or that any

prejudice had been caused to respondent. Accordingly, the petition as filed by the petitioner cannot

be held to be hit by the vice of delays and laches as alleged by the respondent. Hence, this issue is

decided against the respondent and is answered accordingly.

1783

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

RELIEF

19. As sequel to my findings on foregoing issues, petitioner is to be in continuous

uninterrupted service with the respondent from 1999 to 2010 and that the breaks given by the

respondent being fictional in nature shall have no effect on the seniority and continuity of service of

the petitioner. Accordingly, claim petition is hereby allowed in part and reference is accordingly

answered in favour of petitioner. The petitioner shall thus be deemed to be in continuous service of

respondent as stated above with all consequential benefits except back wages. The parties,

however, shall bear their own costs.

20. The reference is answered in the aforesaid terms.

21. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

22. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 30th day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

__________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 297/2015

Date of Institution : 13.07.2015

Date of decision : 30.03.2016

Shri Ashwani Kumar s/o late Shri Kirpa Ram, r/o Village Narwana, P.O. Yol Camp, Tehsil

Dharamshala, District Kangra, H.P.

. .Petitioner.

Versus

The Manager, H.P. Tourism Development Corporation, Dharamshala, Tehsil Dharamshala,

District Kangra, H.P.

. .Respondent.

Reference under section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner

: Sh. N.L. Kaundal, AR

: Sh. Vijay Kaundal, Adv.

For the Respondent : Respondent already exparte

AWARD

1. The following reference has been received from the appropriate Government for

adjudication:

1784

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

“Whether termination of the services of Shri Ashwani Kumar S/O Late Shri Kirpa Ram,

R/O Village Narwana, P.O. Yol Camp, Tehsil Dharamshala, District Kangra, H.P. w.e.f. 06-

04- 2014 by the Manager, H.P. Tourism Development Corporation Dharamshala, Tehsil

Dharamshala, District Kangra, H.P., without complying with the provisions of the Industrial

Disputes Act, 1947, is legal and justified? If not, what amount of back wages, seniority, past

service benefits and compensation the above worker is entitled to from the above

employer?”

2. In pursuance to receipt of reference from appropriate government, notices were issued

to the parties in pursuance to which claimant/petitioner has filed statement of claim.

3. Brief facts as set up in the claim petition reveal that the petitioner had been engaged on

daily waged basis as Carpenter w.e.f. 7.7.2012 by the Manager, H.P. Tourism Hotel, Dhauladhar

where the petitioner continued to work in the said capacity upto 5th April, 2014 without any breaks.

It is alleged that while appointing petitioner no appointment letter was given to him and at the same

time no attendance card and wage slip was made although petitioner was paid salary for every

month on bill voucher through Punjab National Saving Bank Account No.0136000100294019.

Averments made in the claim petition revealed that daily rate of carpenter category had been fixed

by State of H.P. on 1.9.2012 and thus respondent had paid petitioner less wages under Minimum

Wages Act. Thereafter, petitioner approached the Manager requesting him to pay daily rate @

Rs.271/- w.e.f. 1.9.2012 and revised daily rate from time to time w.e.f. 31.3.2014 alongwith

difference of arrears but on demanding minimum wages, the services of petitioner were terminated

w.e.f. 6.4.2014 without notice. The grievances of petitioner remains that if services of petitioner

had been terminated without complying necessary provisions of the Industrial Disputes Act, 1947.

Averments made in the claim petition further revealed that the services of petitioner were

satisfactory upto the mark who had never given any opportunity to his superior for any complaint.

It is alleged that petitioner was working with Assistant Engineer/SDO of Tourism Hotels

Corporation Dharamshala and Assistant Engineer had passed resolution and deputed the petitioner

to other Tourism Hotels of Corporation from time to time to attend the complaints of carpentry

works but the headquarter of the petitioner was fixed at Hotel Dhauladhar, Dharamshala. It is

claimed that at the time of unlawful termination of services of petitioner w.e.f. 6.4.2014 respondent

had not issued any show cause notice although petitioner had worked for more than 240 days

continuously from 7.7.2012 to 5.4.2014. Thus, petitioner claims that termination of services by the

respondent without giving any opportunity to the petitioner for reemployment was in violation of

provisions of Section 25-H of the Industrial Disputes Act. Accordingly, action of the respondent in

terminating the services of petitioner w.e.f. 6.4.2014 was stated to be highly unlawful, arbitrary and

in violation of provisions of the Industrial Disputes Act. It is claimed that petitioner was still

unemployed and not gainfully employed till now and he is entitled for full back wages from his

illegal termination w.e.f. 6.4.2014. Accordingly, petitioner seeks quashing of order of termination

and direction to the respondent to reinstate him in service with seniority and continuity in service

with full back wages from 6.4.2014 and other consequential benefits along with costs of litigation.

4. The respondent was served through Shri Rajinder Gupta, Manager, HP Tourism

Corporation Dharamshala who did not appear despite due service. As such, he was preceded

against exparte and petitioner was allowed to lead exparte evidence.

5. Stepping into the witness box as PW1 petitioner has sworn in affidavit Ex. PW1/A

under Order 18 Rule 4 CPC stipulating therein all the averments as maintained in the claim

petition. While tendering his affidavit in examination-inchief petitioner has led documentary

evidence filing copy of compliant dated 16.4.2014 Ex. PW1/B, Ex. PW1/C the EPF slip, Ex.

PW1/D is the LIC receipt of HP Tourism Department, Ex. PW1/E bank pass book, Ex. PW1/F

letter and closed evidence.

1785

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

6. Evidence of petitioner which has remained unrebutted establishes that petitioner was

engaged as Carpenter or daily wage basis by Manager, HP Tourism Dhauladhar Hotel where he

worked from 7.7.2012 to 5.4.2014. The evidence on record clearly shows that petitioner had been

deputed in various branches of the HP Tourism Hotels for carpentry work. Non appearance of

respondent despite due service is suggestive of the fact that respondent had nothing to say in its

defense to repudiate allegations of the petitioner which are liable to be accepted. The fact that

petitioner had worked with the respondent is also evident from complaint Ex. PW1/F made to

Labour Officer Dharamshala vide which stipulated not only the period for which the petitioner was

engaged rather the total amount of wages paid was not in consonance with the provisions of

Minimum Wages Act. The petitioner has claimed that minimum salary of Rs.271/- liable to be paid

by the respondent for wages per day but in lieu thereof even after having worked for whole of the

month gross salary of Rs.4000/- per month was paid. Ex. PW1/E is statement of account number of

petitioner which shows receipt of payments of petitioner by the respondent. Ex. PW1/C is the

receipt showing that a sum of Rs.1169 had been deducted and deposited in petitioner’s EPF

account. Ex. PW1/D is the receipt showing acknowledgement of Rs.80/- on account of payment of

LIC. Be it stated that all these documents have remained unchallenged and unrebutted in evidence.

Thus, from testimony of petitioner on oath coupled with documents Ex. PW1/B to Ex. PW1/F, it

can be safely concluded that petitioner was employed as Carpenter on 7.7.2012 with HP Tourism

Hotel, Dhauladhar, Dharamshala where he was paid Rs.4000/- per month and who continued to be

paid wages till 6th April, 2008. So relationship of petitioner being employee and respondent being

employer is established and non appearance of respondent clearly strengthens the claim of

petitioner as claimed by him while filing claim petition. Ld. Authorized Representative for the

petitioner contended that petitioner has remained unemployed ever since he was illegally

terminated w.e.f. 6th April, 2014 who has alleged in claim petition as well as proved by leading

evidence. Although there is no cross-examination of petitioner on this point yet petitioner who is a

skilled labourer could not be expected to have remained idle without income as his nature of work

is such that performing work on daily basis he could have livelihood from various other sources

such as while working with the private contractor or working directly in the houses, buildings and

shops etc. Therefore, I am not accepting his plea of having remained not gainfully employed.

7. In view of the foregoing discussion, termination of the services of petitioner w.e.f.

6.4.2014 is set aside and quashed. The respondent is hereby directed to reengage the petitioner

forthwith. However in peculiar circumstances while ordering his re-engagement I do not deem it

just and proper to order payment of full back wages to the petitioner as prayed. The petitioner shall

be entitled to seniority and continuity in service from the date of his illegal termination however

petitioner is awarded with litigation costs of Rs.10,000/-.

8. The reference is answered in the aforesaid terms.

9. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

10. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 30th day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

1786

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 74/2015

Date of Institution : 25.02.2015

Date of Decision : 30.03.2016

Shri Deep Chand s/o Smt. Telu Devi, r/o Village Sarnal, P.O. Jalgraon, Tehsil & District

Kullu, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Parvati Forest Division Shamshi, District Kullu, H.P.

. .Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner

: Sh. Dinesh Gupta, Adv.

For the Respondent(s) : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

The reference given below has been received from the appropriate Government for

adjudication:

“Whether time to time termination of the services of Shri Deep Chand S/O Smt. Telu Devi,

R/O Village Sarnal, P.O. Jalgraon, Tehsil & District Kullu, H.P. during June, 1997 to 2007

and finally during July, 2007 by the Divisional forest Officer, Parvati Forest Division

Shamshi, District Kullu, H.P., without complying the provisions of the Industrial Disputes

Act, 1947 is legal and justified? If not, what amount of back wages, seniority, past service

benefits and compensation the above worker is entitled to from the above employer?”

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3. The claimant/petitioner has instituted present claim petition submitting therein that he

was employed in Jari Range on daily wages since June, 1997 where he continued to work till July,

2007 when his services were terminated by respondent without any reason and without serving any

notice. The grievance of the petitioner remains that petitioner had worked for more than 240 days

in 12 calendar months preceding his termination but requirement of Section 25-F was not complied

by the respondent/department. Not only this, while terminating his services, respondent/department

retained junior persons and thus principle of ‘Last come First go’ envisaged under Section 25-G of

the Industrial Disputes Act was also not followed. Accordingly, petitioner prays for reengagement

in service with seniority and back wages.

4. The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits denied allegations of petitioner having worked with the

respondent for the period stipulated in the claim petition. It is alleged that factually petitioner was

engaged in the month of March, 1997 under Range Officer Jari District Kullu and thereafter

1787

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

petitioner used to work intermittently on various seasonal work for maintenance of nursery,

plantation raising of new plantation and repair of village path till July, 2008. During month of

August, 2008 petitioner left the work at his own will as was reflected in the mandays chart which

showed that petitioner had never completed 240 days of work in each calendar year as claimed by

him. Not only this, after abandoning the job petitioner never turned up to join his duties and

therefore question of termination of the services of petitioner did not arise. It has been emphatically

denied that there was violation of provisions of Industrial Disputes Act on the part of

respondent/department. It has been denied that claimant/petitioner worked continuously since

December, 1996 and his services had been terminated without notice was incorrect and that

petitioner was not entitled to any relief. It has been also denied that any junior persons had been

retained. Accordingly, petition is sought to be dismissed.

5. The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.

6. In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed evidence. On the other hand,

repudiating the evidence led by the petitioner, respondent examined RW1 Shri Hira Lal Rana, the

then Divisional Forest Officer Parvati, tendered/proved his affidavit Ex. RW1/A under Order 18

Rule 4 CPC, Ex. RW1/B mandays chart of petitioner and closed evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

8. From the contentions raised, following issues were framed on 07.10.2015 for

determination:

1. Whether time to time termination of services of the petitioner by the respondent during

the year June, 1997 to 2007 is/was improper and unjustified as alleged?

. .OPP.

2. Whether final termination of services of petitioner during July, 2007 is/was improper

and unjustified?

. .OPP.

3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service benefits

the petitioner is entitled to?

. .OPP.

4. Whether claim petition is not maintainable in the present form as alleged? . .OPR.

Relief.

9. For the reasons detailed here under, my findings on the above issues are as follows:-

Issue No.1 : No

Issue No.2 :

No

Issue No.3 : Discussed

Issue No.4 : Yes

Relief :

Petition is dismissed per operative part of the Award.

1788

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

REASONS FOR FINDINGS

ISSUES NOS.1, 2 AND 3

10. All these issues have been taken up together for discussion being interconnected which

can be disposed off simultaneously without repetition of evidence.

11. As per mandays chart Ex. RW1/B, petitioner is shown to have worked from March,

1997 to July, 2008. In the year 1997 petitioner has worked for 146 days, 84 days in 1998, 210 days

in 1999, 214 days in 2000, 135 days in 2001, 236 days in 2002, 122 days in 2003, 82 days in 2004,

56 days in 2005, 42 days in 2006, 06 days in 2007 and 17 days in 2008. It is evident from years

2006, 2007 and 2008 that petitioner had worked merely for 17 days in 2008, 6 days in 2007 and 42

days in 2006. As such, from bare glance of the mandays chart, no inference of petitioner having

worked for 240 days preceding his termination could be drawn. Since the petitioner had not

factually worked for 240 days in any of the years as shown in mandays chart, it would be unsafe to

hold that petitioner was terminated in violation of provisions of Section 25 F of the Industrial

Disputes Act rather no notice or wages in lieu of notice period was required to be given under

Section 25- F of the Industrial Disputes Act.

12. In so far as plea of abandonment of job or work being performed by the petitioner of

seasonal nature is concerned as per plea of respondent is concerned, the petitioner in his statement

in cross-examination has admitted that he worked with the forest department for seasonal work. He

has denied that he used to attend the work at his own will. He has admitted that the mandays chart

Ex. RW1/B submitted by the department was correct. Since respondent has not produced any

documents which would show that forest activities would be seasonal in nature as there is no

corresponding notification issued by government to that effect. As such, it cannot be stated that the

work with the respondent was purely of seasonal in nature but the plea of abandonment had to be

proved by respondent by leading cogent evidence. By merely stating that petitioner was not

attending the work regularly or that he left the job of his own and did not report for duty respondent

was required to take action by issuing legal notice qua unauthorized absence which has not been

done. There is nothing in testimony of respondent of Shri Hira Lal Rana that any notice was issued

to the petitioner on his unauthorized absence. As such, neither plea of forest work being seasonal

activities nor abandonment gets established from respondent’s evidence but certainly petitioner has

failed to prove that he had worked for 240 days in 12 calendar months preceding date of

termination. Accordingly, it is held that respondent has not violated the provisions of Section 25-F

of the Industrial Disputes Act.

13. On the point of time to time termination, petitioner has not produced any seniority list

by which it would be inferred that persons junior to petitioner had been engaged or allowed to be

retained in service while terminating service of petitioner. Significantly, petitioner in his cross-

examination himself has demolished his case by stating specifically on oath that department had not

kept any one junior to him in the department which goes to show that there was no retention of

juniors by the respondent/department. That being so, plea of time to time termination is not tenable.

On the point of means of livelihood petitioner himself has stated that he owned property and had

cultivable land. Thus, it cannot be stated that petitioner was not gainfully employed. Be it stated

that no such plea was raised in the claim petition. Keeping in view of the above, the respondent

having not retained any junior while terminating the services of petitioner, it would be unsafe to

hold that respondent/department had violated the provisions of Section 25-H of the Industrial

Disputes Act. In view of the foregoing discussions, issues no.1 to 3 are decided in negative and for

similar reason petitioner is held not entitled in any service benefits such as back wages,

reinstatement or continuity in service. Issues no.1 to 3 are decided in negative against the petitioner

and in favour of respondent.

1789

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

ISSUE NO.4

14. Since the petitioner had failed to establish that respondent had violated either the

provisions of Section 25-F, 25-G or 25-H of the Industrial Disputes Act, claim petition is held to be

not maintainable. This issue is decided against the petitioner and in favour of the respondent.

RELIEF

15. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.

In the peculiar circumstances of the case, the parties are left to bear their own costs.

16. The reference is answered in the aforesaid terms.

17. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

18. File, after due completion be consigned to the Record Room.

Announced in the open Court today this 30th day of March, 2016.

(K. K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

__________

IN THE COURT OF K.K. SHARMA, PRESIDING JUDGE, LABOUR COURT-CUM

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP) (CAMP AT MANDI)

Ref No. : 73/2015

Date of Institution : 25.02.2015

Date of Decision : 30.03.2016

Shri Rohlu Ram s/o Shri Sant Ram, r/o Village Shauch, P.O. Dhara, Tehsil & District

Kullu, H.P.

. .Petitioner.

Versus

The Divisional Forest Officer, Parvati Forest Division Shamshi, District Kullu, H.P.

. .Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. Dinesh Gupta, Adv.

For the Respondent(s) : Sh. Sanjeev Singh Rana, Dy. D.A.

1790

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

AWARD

The reference given below has been received from the appropriate Government for

adjudication:

“Whether time to time termination of services of Shri Rohlu Ram S/O Shri Sant Ram, R/O

Village Shauch, P.O. Dhara, Tehsil & District Kullu, H.P. during September, 1996 to

January, 2008 and finally during February, 2008 by the Divisional Forest Officer, Parvati

Forest Division, Shamshi, District Kullu, H.P., without complying with the provisions of the

Industrial Disputes Act, 1947, is legal and justified? If not, what amount of back wages,

seniority, past service benefits and compensation the above worker is entitled to from the

above employer?”

2. On receipt of reference from appropriate government, notices were issued to the parties

in pursuance to which claimant/petitioner has filed statement of claim.

3.

The claimant/petitioner has instituted present claim petition submitting therein that he

was employed in Jari Range on daily wages since September, 1996 where he continued to work till

March, 2008 when his services were terminated without any reason and notice. The grievances of

the petitioner remains that he had worked for more than 240 days in 12 calendar months preceding

his termination but requirement of Section 25-F was not complied by the respondent/department.

Not only this, while terminating his services, respondent/department retained junior persons and

that principle of ‘Last come First go’ envisaged under Section 25-G of the Industrial Disputes Act

was also not followed. Accordingly, petitioner prays that he be reengaged with back wages and

seniority.

4.

The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability. On merits denied allegations of petitioner having worked with the

respondent for the period stipulated in the claim petition. It is alleged that factually petitioner was

engaged in the month of September, 1996 under Range Officer Jari District Kullu and thereafter

petitioner used to work intermittently on various seasonal work for maintenance of nursery,

plantation raising of new plantation and repair of village path till February, 2008. During month of

February, 2008 petitioner left the work at his own will as was reflected in the mandays chart which

showed that petitioner had never completed 240 days of work in each calendar year as claimed by

him. Not only this, after abandoning the job petitioner never turned up and therefore question of

termination of the services of petitioner did not arise. It has been emphatically denied that there was

violation of provisions of Industrial Disputes Act on the part of respondent/department. It has been

denied that claimant/petitioner worked continuously since December, 1996 and his services had

been terminated without notice was incorrect and that petitioner was not entitled to any relief. It has

been also denied that any junior persons had been retained. Accordingly, petition is sought to be

dismissed.

5.

The petitioner filed rejoinder, reiterated his stand as maintained in the claim petition.

6. In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC and closed evidence. On the other hand,

repudiating the evidence led by the petitioner, respondent examined RW1 Shri Hira Lal Rana, the

then Divisional Forest Officer Parvati, tendered/proved his affidavit Ex. RW1/A under Order 18

Rule 4 CPC, Ex. RW1/B mandays chart of petitioner and closed evidence.

7. I have heard the Authorized Representative/counsel representing petitioner and ld. Dy.

D.A. for respondent, gone through records of the case carefully.

1791

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

8. From the contentions raised, following issues were framed on 07.10.2015 for

determination:

1. Whether time to time termination of services of the petitioner by the respondent during

the year September, 1996 to January, 2008 is/was improper and unjustified as alleged?

. .OPP.

2. Whether final termination of services of petitioner during February, 2008 is/was

improper and unjustified?

. .OPP.

3. If issue no.1 or issue no.2 or both are proved in affirmative, to what service benefits

the petitioner is entitled to?

. .OPP.

4. Whether claim petition is not maintainable in the present form as alleged? . .OPR.

Relief.

9. For the reasons detailed here under, my findings on the above issues are as follows:-

Issue No.1 : No

Issue No.2 : No

Issue No.3 : Discussed

Issue No.4 : Yes

Relief :

Petition is dismissed per operative part of the Award.

REASONS FOR FINDINGS

ISSUES NOS.1, 2 AND 3

10. All these issues have been taken up together for discussion being interconnected which

can be disposed of simultaneously without repetition of evidence.

11. As per mandays chart Ex. RW1/B, petitioner is shown to have worked from December,

1996 to February, 2008. In the year 1996 he has worked for 24 days, 177 days in 1997, 174 days in

1998, 220 days in 1999, 242 days in 2000, 16 days in 2001, 119 days in 2002, 16 days in 2003, 24

days in 2005, 27 days in 2006, 29 days in 2007 and 29 days in 2008. It is evident from years 2006,

2007 and 2008 that petitioner had worked merely for 29 days in 2008, 29 days in 2007 and 27 days

in 2006. As such, bare glance of the mandays chart that no inference of petitioner having worked

for 240 days preceding his termination could be drawn. Although in the year 2000 petitioner Rohlu

Ram is shown to have worked for 242 days but he continued to remain working with the

respondent/department till 2008 and in preceding 12 months he had not factually worked for 240

days as shown in mandays chart it would be unsafe to hold that petitioner was terminated in

violation of provisions of Section 25-F of the Industrial Disputes Act rather no notice or wages in

lieu of notice period was required to be given due to which petitioner has failed to meet the

requirement of Section 25-F of the Industrial Disputes Act. In so far as plea of abandonment or

work being performed by the petitioner of seasonal nature is concerned, the petitioner in his

statement in crossexamination has admitted that he worked with the forest department for seasonal

work. He has denied that he used to attend the work of his own will. He has admitted that the

1792

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

mandays chart Ex. RW1/B submitted by the department was correct. Since respondent has not

produced any documents which would show that forest activities would be seasonal in nature as

there is no corresponding notification issued by government to that effect. As such, it cannot be

stated that the work with the respondent was purely of seasonal in nature but the plea of

abandonment had to be proved by respondent by leading evidence. By merely stating that petitioner

was not attending the work regularly or that he left the job of his own and did not report for duty

sincerely shows that respondent/department when petitioner remaining absented from job omitted

any legal notice to him. There is nothing in testimony of respondent of Shri Hira Lal Rana that any

notice was issued to the petitioner to attend the work/job. As such, neither plea of forest work being

seasonal activities nor abandonment get established from respondent’s evidence but certainly

petitioner has failed to prove that he had worked for 240 days in 12 calendar months preceding date

of termination. Accordingly, it is held that respondent has not violated the provisions of Section 25-

F of the Industrial Disputes Act.

12. On the point of time to time termination, petitioner has not produced any seniority list

by which it would be inferred that persons junior to petitioner had been engaged or allowed to be

retained in service when terminating service of petitioner. Significantly, petitioner in his cross-

examination himself has demolished his case by stating specifically on oath that department had not

kept any one junior to him in the department which goes to show that there was no retention of

juniors by the respondent/department. That being so, plea of time to time termination is not tenable.

On the point of means of livelihood himself he has own property and was cultivable land. Thus, it

cannot be stated that petitioner was not gainfully employed. Be it stated that no such plea was made

in the claim petition. Keeping in view of the above the respondent having not retained any junior

while terminating the services of petitioner, it would be unsafe to hold that respondent/department

had violated the provisions of Section 25-H of the Industrial Disputes Act. In view of the foregoing

discussions, issues no.1 to 3 are decided in negative and for similar reason petitioner is held not

entitled in any service benefits such as back wages, reinstatement or continuity in service. Issues

no.1 to 3 are decided in negative against the petitioner and in favour of respondent.

ISSUE NO.4

13. Since the petitioner had failed to establish that respondent had violated either the

provisions of Section 25-F, 25-G or 25-H of the Industrial Disputes Act, claim petition is held to be

not maintainable. This issue is decided against the petitioner and in favour of the respondent.

RELIEF

14. As a sequel to my findings on foregoing issues, the instant claim petition is dismissed.

In the peculiar circumstances of the case, the parties are left to bear their own costs.

15. The reference is answered in the aforesaid terms.

16. A copy of this Award be sent to the appropriate Government for publication in the

official gazette.

17. File, after due completion be consigned to the Record Room. Announced in the open

Court today this 30th day of March, 2016.

(K.K. Sharma)

Presiding Judge,

Labour Court-cum-Industrial

Tribunal, Dharamshala, H.P.

1793

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

REVENUE DEPARTMENT

NOTIFICATION

Shimla-2, the 3rd August, 2013

No. Rev-C(A)1-4/2008.—The election for the Chairperson, Himacahl Pradesh Wakf Board

under Sub Section (8) of Section 14 of the Wakf Act, 1995 was held on 30-7-2013 at 11-00 A.M. in

the presence of Addl. Secretary (Revenue) to the Government of Himachal Pradesh, Shimla-2 in

which Sh. Khwaja Khaleel Ullah, s/o Late Sh. Khwaja Aman Ullah, 70/1, Khwaja Building. The

Mall Shimla (HP) has been elected unanimously as the Chairperson of the H.P. Wakf Board.

Now, in exercise of the powers conferred under Sub-Section (8) read with clause (a) of Sub

Section (1) of Section 14 of the Wakf Act, 1995, the Governor Himachal Pradesh is pleased to

appoint Sh. Khwaja Khaleel Ullah, as Chairperson of the H.P. Wakf Board from the date of

publication of this notification in Rajpatra, Himachal Pradesh.

The other terms and conditions of the Chairperson will be issued separately.

By order,

Sd/-

Principal Secretary (Revenue).

__________

jktLo foHkkx

¼LVkEi&jftLVªhdj.k½

vkns'k

f”keyk&02] 21 twu] 2016

la[;k% jSo0 LVkEi ¼,Q½1&1@2005&IV-&&fgekpy izns”k ds jkT;iky] fgekpy izns”k jkT; esa

;Fkk ykxw Hkkjrh; LVkEi vf/kfu;e] 1899 ¼1899 dk vf/kfu;e la[;kad 2½ dh /kkjk 9 }kjk iznRr “kfDr;ksa

dk iz;ksx djrs gq,] vkoklh; iz;kstu ds fy, fufeZr ?kj ds jftLVªhdj.k gsrq gLRkkUrj.k foys[k ij] tgka

gLrkUrj.k ls LFkkoj lEifRr dk foØ; gksrk gS] vkSj nku foys[k dh fy[krksa ij] efgykvksa ds i{k esa

LVkEi “kqYd dks] bl vf/klwpuk ds jkti= ¼bZ&xtV½] fgekpy izns”k esa izdk”ku dh rkjh[k ls] pkj

izfr”kr ls ?kVkdj rhu izfr”kr djus ds lg’kZ vkns”k nsrs gSA

vkns”k }kjk]

¼r:.k Jh/kj½]

vfrfjDr eq[; lfpo ¼jktLo½A

1794

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

[Authoritative English Text of this Department Notification No. Rev. Stamp(F)1-1/2005-IV dated

21/06/2016 as required under Article 348(3) of the constitution of India.]

REVENUE DEPARTMENT

(Stamp-Registration)

ORDER

Shimla-171002, the 21st June, 2016

No.Rev.Stamp(F)1-1/2005-IV.—In exercise of the powers conferred by section 9 of the

Indian Stamp Act, 1899 (Act No. II of 1899), as applicable to State of Himachal Pradesh, the

Governor of Himachal Pradesh is pleased to order to reduce the Stamp Duty from 4% to 3% in

favour of women for registration of built up house for residential purpose on instruments of

conveyance, where the conveyance amounts to sale of immovable property and gift deed from the

date of its publication in the Rajpatra (e-Gazette), Himachal Pradesh.

By order,

(TARUN SHRIDHAR),

Addl. Chief Secy. (Revenue).

_________

c vnkyr lgk;d lekgrkZ f}rh; Js.kh ,oa uk;c rglhynkj] HkysbZ] ftyk pEck ¼fg0 iz0½

Jh prjks iq= Jh nqUuw] fuoklh xkao yge.kh] ijxuk o mi&rglhy HkysbZ] ftyk pEck ¼fg0iz0½

- - izkFkhZ

cuke

vke turk

- - Qjhdnks;e

izkFkZuk i= ckcr uke n#Lrh tsj /kkjk 37¼2½ fg0 iz0 Hkw&jktLo vf/kfu;e] 1954 ds vUrxZr djus ckjsA

bZ'rgkj

izkFkhZ Jh prjks iq= Jh nqUuw] fuoklh xkao yge.kh] ijxuk o mi&rglhy HkysbZ] ftyk pEck

¼fg0iz0½ us vnkyr gtk esa ,d izkFkZuk i= ckcr uke n#Lrh xqtkjk gSA izkFkhZ us fuosnu fd;k gS fd

mldk uke xzke iapk;r HkysbZ ds ifjokj jftLVj ds fjdkMZ esa esjk uke prjks ntZ gS tksfd lgh o

n#Lr gS ysfdu jktLo fjdkMZ esa esjk uke prjks jke ntZ gS tksfd xyr ntZ gSA blfy, vc og viuk

uke eqgky lyksMh ds jktLo vfHkys[k esa prjks jke ds ctk;s prjks jke mQZ prjks n#Lr djokuk pkgrk

gSA

vr% loZlk/kkj.k dks bl bZ'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks

izkFkhZ mDr dk uke n#Lr djus ckjk dksbZ mtj o ,rjkt gks rks og fnukad 11&07&2016 dks izkr% 10

cts vlkyru ;k odkyru gkftj gksdj viuk mtj o ,rjkt fyf[kr :i esa is'k djsaA vU;Fkk izkFkhZ

dk uke n#Lr djus ckjk vkns'k ikfjr dj fn;s tk;saxsA blds mijkUr dksbZ Hkh mtj o ,rjkt dkcys

lek;r u gksxkA

vkt fnukad 03&06&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

HkysbZ] ftyk pEck ¼fg0 iz0½A

1795

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

c vnkyr lgk;d lekgrkZ f}rh; Js.kh ,oa uk;c rglhynkj] HkysbZ] ftyk pEck ¼fg0 iz0½

Jh fouksn dqekj iq= Jh c¡dks jke] fuoklh xkao nzoyk] ijxuk o mi&rglhy HkysbZ] ftyk pEck

¼fg0iz0½

- - izkFkhZ

cuke

vke turk

- - Qjhdnks;e

izkFkZuk i= ckcr uke n#Lrh tsj /kkjk 37¼2½ fg0 iz0 Hkw&jktLo vf/kfu;e] 1954 ds vUrxZr djus ckjsA

bZ'rgkj

izkFkhZ Jh fouksn dqekj iq= Jh c¡dks jke] fuoklh xkao nzoyk] ijxuk o mi&rglhy HkysbZ] ftyk

pEck ¼fg0 iz0½ us vnkyr gtk esa ,d izkFkZuk i= ckcr uke n#Lrh xqtkjk gSA izkFkhZ us fuosnu fd;k gS

fd mlds Lo0 firk dk uke eqgky nzoyk ds jktLo vfHkys[k esa c¡dks ntZ gS tksfd xyr ntZ gS tcfd

xzke iapk;r fle.kh ds vfHkys[k esa mlds Lo0 firk dk uke c¡dks jke ntZ gS tks dh lgh ntZ gSA

blfy, vc og vius Lo0 firk dk uke eqgky nzoyk ds jktLo vfHkys[k esa c¡dks ds ctk;s c¡dks mQZ

c¡dks jke n#Lr djokuk pkgrk gSA

vr% loZlk/kkj.k dks bl bZ'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks

izkFkhZ ds Lo0 firk dk uke n#Lr djus ckjk dksbZ mtj o ,rjkt gks rks og fnukad 11&07&2016 dks

izkr% 10 cts vlkyru ;k odkyru gkftj gksdj viuk mtj o ,rjkt fyf[kr :i esa is'k djsaA

vU;Fkk izkFkhZ dk uke n#Lr djus ckjk vkns'k ikfjr dj fn;s tk;saxsA blds mijkUr dksbZ Hkh mtj o

,rjkt dkcys lek;r u gksxkA

vkt fnukad 01&06&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

HkysbZ] ftyk pEck ¼fg0 iz0½A

&&&&&&&&&&

c vnkyr lgk;d lekgrkZ f}rh; Js.kh ,oa uk;c rglhynkj] HkysbZ] ftyk pEck ¼fg0 iz0½

Jh izrki flag iq= Jh gqf'k;kjk] xkao jksgV] ijxuk o mi&rglhy HkysbZ] ftyk pEck ¼fg0iz0½

- - izkFkhZ

cuke

vke turk

- - Qjhdnks;e

izkFkZuk i= ckcr uke n#Lrh tsj /kkjk 37¼2½ fg0 iz0 Hkw&jktLo vf/kfu;e] 1954 ds vUrxZr djus ckjsA

bZ'rgkj

izkFkhZ Jh izrki flag iq= Jh gqf'k;kjk] xkao jksgV] ijxuk o mi&rglhy HkysbZ] ftyk pEck

¼fg0iz0½ us fuosnu fd;k gS fd mlds yM+ds vuwi dqekj ds Ldwy izek.k i= rFkk esjs Ldwy izek.k i= o

vk/kkj dkMZ ij esjk uke izrki flag ntZ gSA tks dh lgh o n#Lr gS vkSj jktLo foHkkx esa esjk uke

1796

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

izrkiks ntZ gS tks fd xyr ntZ gSA blfy, eSa viuk uke eqgky HkysbZ ds jktLo vfHkys[k esa izrkiks ds

ctk;s izrkiks mQZ izrki flag djokuk pkgrk gwaA

vr% loZlk/kkj.k dks bl bZ'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks

izkFkhZ mDr dk uke n#Lr djus ckjk dksbZ mtj o ,rjkt gks rks og fnukad 11&07&2016 dks izkr% 10

cts vlkyru ;k odkyru gkftj gksdj viuk mtj o ,rjkt fyf[kr :i esa is'k djsaA vU;Fkk izkFkhZ

dk uke n#Lr djus ckjk vkns'k ikfjr dj fn;s tk;saxsA blds mijkUr dksbZ Hkh mtj o ,rjkt dkcys

lek;r u gksxkA

vkt fnukad 01&06&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

HkysbZ] ftyk pEck ¼fg0 iz0½A

&&&&&&&&&&

c vnkyr lgk;d lekgrkZ f}rh; Js.kh ,oa uk;c rglhynkj] HkysbZ] ftyk pEck ¼fg0 iz0½

Jherh dkS'kY;k iRuh Lo0 Jh fnoku pUn] xkao dVokM] ijxuk o mi&rglhy HkysbZ] ftyk pEck

¼fg0iz0½

- - izkFkhZ

cuke

vke turk

- - Qjhdnks;e

izkFkZuk i= ckcr uke n#Lrh tsj /kkjk 37¼2½ fg0 iz0 Hkw&jktLo vf/kfu;e] 1954 ds vUrxZr djus ckjsA

bZ'rgkj

izkFkhZ Jherh dkS'kY;k iRuh Lo0 Jh fnoku pUn] xkao dVokM] ijxuk o mi&rglhy HkysbZ] ftyk

pEck ¼fg0iz0½ us fuosnu fd;k gS fd mlds Lo0 ifr dk uke eqgky fdyksM ds jktLo vfHkys[k esa nokuksa

ntZ gS tks fd xyr ntZ gS tcfd xzke iapk;r xokyw ds ifjokj jftLVj fjdkMZ rFkk yksd fuekZ.k foHkkx

esa fnoku pUn ntZ gS tksfd lgh ntZ gS blfy, eSa vius e`rd ifr dk uke egky fdyksM ds jktLo

vfHkys[k esa nokuksa ds ctk;s nokuksa mQZ fnoku pUn djokuk pkgrh gwaA

vr% loZlk/kkj.k dks bl bZ'rgkj ds ek/;e ls lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks

izkFkhZ ds Lo0 ifr dk uke n#Lr djus ckjk dksbZ mtj o ,rjkt gks rks og fnukad 11&07&2016 dks

izkr% 10 cts vlkyru ;k odkyru gkftj gksdj viuk mtj o ,rjkt fyf[kr :i esa is'k djsaA

vU;Fkk izkFkhZ ds Lo0 ifr dk uke n#Lr djus ckjk vkns'k ikfjr dj fn;s tk;saxsA blds mijkUr dksbZ Hkh

mtj o ,rjkt dkcys lek;r u gksxkA

vkt fnukad 30&05&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ f}rh; Js.kh]

HkysbZ] ftyk pEck ¼fg0 iz0½A

1797

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

c vnkyr Jh j?kqohj flag] rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh] dqYyw] ftyk dqYyw] fg0 iz0

dsl uEcj % 32/B.E./T/2016

rkjh[k is'kh % 8&07&2016

cuke loZlk/kkj.k ,oa vke turk

fo"k;-&izkFkZuk&i= vf/kfu;e /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-

Jh eqjr jke liq= Jh xqV~Vw jke] fuoklh oU'kw] Mk0 [kMhgkj] rglhy o ftyk dqYyw] fg0 iz0 us

bl dk;kZy; esa izkFkZuk&i= fn;k gS fd mldh yM+dh jkf/kdk dk tUe fnukad 11&2&2005 dks gqvk gS

ijUrq mldh tUe frfFk dk bUnzkt fdlh dkj.ko'k xzke iapk;r [kMhgkj ds vfHkys[k esa ntZ u dh xbZ

gSA

vr% bl b'rgkj gtk }kjk loZlk/kkj.k dks lwfpr fd;k tkrk gS fd ;fn fdlh O;fDr dks jkf/kdk

dh tUe frfFk ntZ djokus ckjs dksbZ vkifŸk gks rks og fnukad 8&7&2016 dks lqcg 10-00 cts ;k blls

iwoZ vlkyru o odkyur gkftj vnkyr vkdj viuk mtj o ,rjkt ntZ djok ldrk gS blds

mijkUr dksbZ Hkh mtj@,rjkt lek;r u gksxk rFkk fu;ekuqlkj tUe frfFk ntZ djokus ds vkns'k

lEcfU/kr iapk;r dks ikfjr dj fn, tk,axsA

vkt fnukad 9&6&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh gqvkA

eksgjA

gLrk{kfjr@&

dk;Zdkjh n.Mkf/kdkjh]

dqYyw] ftyk dqYyw ¼fg0 iz0½A

&&&&&&&

c vnkyr Jh j?kqohj flag] rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh] dqYyw] ftyk dqYyw] fg0 iz0

dsl uEcj % 36/M.E./T/2016

rkjh[k is'kh % 8&7&2016

1- Jh nhi pUn iq= Jh uks[kw jke] fuoklh ?kqM+nkSM+] Mk0 yjkafdyks] rglhy o ftyk dqYyw]

fg0 iz0A

2- Jherh d`".kk nsoh iq=h Jh esgj pUn] fuoklh xkS'kky] Mk0 okgx] rglhy o ftyk dqYyw]

fg0 iz0

- - izkFkhZx.k

cuke

vke turk

- - izfroknhx.k

fo"k;-&izkFkZuk&i= tsj /kkjk 5¼4½ fg0 iz0 jftLVªhdj.k fu;e] 2004 fookg iathdj.k ckjsA

mijksDr ekeyk esa izkFkhZx.k mijksDr us fnukad 4&6&2016 dks bl vnkyr esa izkFkZuk&i= is'k

fd;k gS fd mUgksaus fnukad 10&9&2001 dks fgUnw jhfr fjokt ds vuqlkj LFkku ?kqM+nkSM+ esa 'kknh dj yh gS

vkSj rc ls ifr iRuh ds #i esa jgrs pys vk jgs gSaA ijUrq izkFkhZx.k }kjk viuh 'kknh dk bUnzkt lEcfU/kr

iapk;r esa ugha djok;k gSA

vr% loZlk/kkj.k dks o vke turk dks bl b'rgkj }kjk lwfpr fd;k tkrk gS fd fdlh Hkh O;fDr

dks mijksDr izkFkhZx.kksa dh 'kknh dks lEcfU/kr iapk;r ds vfHkys[k esa ntZ djus ckjs dksbZ mtj o ,rjkt

gks rks og fnukad 8&7&2016 dks lqcg 10-00 cts ;k blls iwoZ vlkyru ;k odkyru gkftj vnkyr

1798

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

is'k gksdj viuk mtj o ,rjkt is'k dj ldrk gSA blds mijkUr dksbZ Hkh mtj o ,rjkt izkIr u gksus

dh lwjr esa fu;ekuqlkj 'kknh ntZ djus ds vkns'k ikfjr dj fn, tk,axsA

vkt fnukad 9&6&2016 dks esjs gLrk{kj o eksgj vnkyr }kjk tkjh gqvkA

eksgjA

gLrk{kfjr@&

rglhynkj ,oa dk;Zdkjh n.Mkf/kdkjh]

dqYyw] ftyk dqYyw ¼fg0 iz0½A

&&&&&&&

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Shri Urgyen s/o Shri Thandup, r/o 90, D-Block, Tibetan Colony Panthaghati, Tehsil and

District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

Whereas Shri Urgyen s/o Shri Thandup, r/o 90, D-Block, Tibetan Colony Panthaghati,

Tehsil and District Shimla has preferred an application to the undersigned for registration the name

and date of birth of his son namely Hem Raj (DOB 18-6-1977) in the record of Municipal

Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

____________

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Shri Tenzin Tashi s/o Shri Purba Thinley, r/o House No. 19, Anand Bakery, Nabha House

P.O. Chaura Maidan Shimla, Tehsil and District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

1799

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Whereas Shri Tenzin Tashi s/o Shri Phurba Thinley, r/o House No. 19, Anand Bakery,

Nabha House, P.O. Chaura Maidan Shimla, Tehsil and District Shimla has preferred an application

to the undersigned for registration the name and date of birth of his (DOB 24-12-1980) in the

record of Municipal Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

____________

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Dolma d/o Shri Purba Thinley, r/o House No. 19, Anand Bakery, Nabha House, P. O.

Chaura Maidan Shimla, Tehsil and District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

Whereas Dolma d/o Shri Phurba Thinley, r/o House No. 19, Anand Bakery, Nabha House

P.O. Chaura Maidan Shimla, Tehsil and District Shimla has preferred an application to the

undersigned for registration the name and date of birth of her (DOB 10-3-79) in the record of

Municipal Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

1800

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Shri Karma Sherap s/o Shri Purba Thinley, r/o House No. 19, Anand Bakery, Nabha House

P.O. Chaura Maidan Shimla, Tehsil and District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

Whereas Karma Sherap s/o Shri Phurba Thinley, r/o House No. 19, Anand Bakery, Nabha

House P.O. Chaura Maidan Shimla, Tehsil and District Shimla has preferred an application to the

undersigned for registration the name and date of birth of his (DOB 3-1-78) in the record of

Municipal Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

____________

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Shri Karma Gyaltsen s/o Shri Purba Thinley, r/o House No. 19, Anand Bakery, Nabha

House, P.O. Chaura Maidan Shimla, Tehsil and District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

Whereas Karma Gyaltsen s/o Shri Phurba Thinley, r/o House No. 19, Anand Bakery, Nabha

House, P.O. Chaura Maidan Shimla, Tehsil and District Shimla has preferred an application to the

undersigned for registration the name and date of birth of his (DOB 3-1-78) in the record of

Municipal Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

1801

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+ 1938

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

____________

The Court of Shri Hemis Negi, H.A.S., Sub Divisional Magistrate Shimla (Urban),

District Shimla, Himachal Pradesh

Smt. Tashi Tsamtso w/o Shri Tashi Topgyal, r/o Waho Villa Sarswati Garden Estate,

Tibetan Colony, Panthaghati, Tehsil and District Shimla

. . Applicant.

Versus

General Public

.. Respondent.

Application under section 13(3) of Birth and Death Registration Act, 1969.

Whereas Smt. Tashi Tsamtso w/o Shri Tashi Topgyal, r/o Waho Villa Sarswati Garden

Estate, Tibetan Colony, Panthaghati, Tehsil and District Shimla has preferred an application to the

undersigned for registration the name and date of birth of her daughter namely Dicky Lhamo

(DOB 20-4-98) in the record of Municipal Corporation Shimla.

Therefore, this proclamation, the General Public is hereby informed that any person having

any objection for entry as to date of birth mentioned above, may submit his objection in writing in

this court on or before 4-7-2016 failing which no objection will be entertained after expiry of date

and will be decided accordingly.

Given under my hand and seal of the Court on this 4th day of June, 2016.

Seal.

HEMIS NEGI,

Sub-Divisional Magistrate,

Shimla (Urban).

____________

c vnkyr Jh vuqie Bkdqj] mi&e.Mykf/kdkjh ¼uk0½ MksMjk&Dokj] ftyk f'keyk] fg0 iz0

Jherh rqaxyk nsoh iRuh I;kjs yky] fuoklh /kUnzokMh] rglhy MksMjk&Dokj] ftyk f'keyk] fg0 iz0

cuke

vke turk

nj[okLr tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-

Jherh rqaxyk nsoh iRuh I;kjs yky] fuoklh /kUnzokMh] rglhy MksMjk&Dokj] ftyk f'keyk] fg0 iz0

us bl dk;kZy; esa xqtkfj'k dh gS fd mlds iq= nsfoUnz flag iq= I;kjs yky dh okLrfod tUe frfFk

1802

jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938

25&02&1992 gS tks fd 'kS{kf.kd izek.k i= o vk/kkj dkMZ esa lgh ntZ gS ysfdu xzke iapk;r /kUnzokMh ds

ifjokj jftLVj esa nsfoUnz flag dh tUe frfFk 25&09&1990 ntZ gS tks xyr gS vkSj vkosfndk iapk;r

vfHkys[k esa lgh tUe frfFk ntZ djokuk pkgrh gSA

vr% bl vnkyrh b'rgkj }kjk loZlk/kkj.k vke turk dks lwfpr fd;k tkrk gS fd ;fn mDr

tUe frfFk dk iapk;r vfHkys[k esa lgh bUnzkt djus ckjk fdlh dks dksbZ mtj ;k ,rjkt gks rks og

fnukad 30&06&2016 dks ;k blls iwoZ dk;kZy; esa gkftj vkdj viuk ,rjkt is'k dj ldrk gS vU;Fkk

lEcfU/kr xzke iapk;r dks mDr tUe frfFk dk bUnzkt fd;s tkus ds vkns'k ikfjr dj fn;s tk,axsA

eksgjA

vuqie Bkdqj]

mi&e.Mykf/kdkjh ¼uk0½]

MksMjk&Dokj] ftyk f'keyk] fg0 iz0A

&&&&&&&&

c vnkyr lgk;d lekgrkZ izFke Js.kh] fB;ksx] ftyk f'keyk

Jh nsojkt 'kekZ iq= Jh [ksekuUn 'kekZ] fuoklh txpkSdh] Mk0 ukxtqCcM] rglhy fB;ksx

- - izkFkhZ

cuke

vke turk

- - izfroknh

Jh [ksekuUn 'kekZ iq= Jh jked`".k 'kekZ] fuoklh txpkSdh] Mk0 ukxtqCcM] rglhy fB;ksx ds ykirk ckjsA

bZ'rgkj

izkFkhZ Jh nsojkt 'kekZ iq= Jh [ksekuUn 'kekZ] fuoklh txpkSdh] Mk0 ukxtqCcM] rglhy fB;ksx us

bl U;k;ky; esa ,d izkFkZuk i= izLrqr fd;k gS fd mlds firk Jh [ksekuUn 'kekZ fiNys 16 o"kksZa ls ?kj ls

ykirk gS ftudks <wa<us ds izkFkhZ rFkk mlds ifjokj }kjk vyx&vyx LFkkuksa ij Hkjld iz;kl fd;s x;s

ijUrq mijksDr Jh [ksekuUn 'kekZ dk dgha Hkh irk ughs pykA ftl ckjs iqfyl Fkkuk fB;ksx esa xqe'kqnk dh

fjiksVZ ntZ djokbZ xbZA izkFkhZ ds firk Jh [ksekuUn 'kekZ dk brus o"kksZa ls ?kj okfil u vkuk rFkk dgha Hkh

irk u yxus ds dkj.k bl ckr ls bZUdkj ugha fd;k tk ldrk fd mDr O;fDr Jh [ksekuUn dh e`R;q gks

xbZ gksA

vr% vnkyr dks fo'okl gks pqdk gS fd mijksDr izkFkhZ ds firk dk vDlekr fu/ku gks x;k gks

rFkk mldh vjkth mlds tk;t okjlku ds i{k esa dh tkuh gSA vr% bl bZ'rgkj }kjk lwfpr fd;k

tkrk gS fd ;fn fdlh dks Hkh mijksDr [ksekuUn dh vjkth mlds tk;t okjlku ds i{k esa djus ckjs

dksbZ mtj o ,rjkt gks rks Lo;a o fyf[kr rkSj ij fnukad 30&06&2016 rd gkftj vnkyr vkdj

viuk ,rjkt is'k djs vU;Fkk ,d rjQk dk;Zokgh vey esa ykbZ tkdj Hkwfe dk bZUrdky mlds tk;t

okjlku ds i{k esa dj fn;k tk;sxkA

vkt fnukad 01&06&2016 dks esjs gLrk{kj o eksgj vnkyr ls tkjh fd;k x;kA

eksgjA

gLrk{kfjr@&

lgk;d lekgrkZ izFke Js.kh]

fB;ksx] ftyk f'keykA

fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr

bysDVªkWfud gLrk{kfjr jkti=] oSclkbV http://rajpatrahimachal.nic.in ij miyC/k gS ,oe~ vkWuykbu lR;kfir fd;k tk ldrk gS