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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
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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
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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.
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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.
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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.
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Case called twice but none appeared on behalf of the petitioner. It is 10:50 AM. Be called
again.
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
_________
Case called again
Present:
None for the petitioner.
Shri 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
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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
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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
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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
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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
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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,
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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
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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
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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
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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
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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
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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,
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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.
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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
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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
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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
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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.
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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.
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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.”
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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:
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“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.
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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:
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“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.
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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
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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.
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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
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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.
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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
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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.
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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.
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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.
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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.
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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
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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,
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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]
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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
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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
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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
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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.
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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,
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the persons who were junior to petitioner are stated to have been regularized in service and thus
respondent had not followed the mandate of Sections 25-G and 25-H of the Act which was
obligatory on its part. The case of petitioner also remains that 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
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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
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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
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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.
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(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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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]
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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.
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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)
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
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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
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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
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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
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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
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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
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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
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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.
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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,
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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
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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:—
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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.
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13. In so far as plea of abandonment raised by respondent is concerned, the same merits
rejection in view of the fact that respondent had failed to produce any record by which it could be
established that whenever petitioner absented from his duty as also reflected in mandays chart Ex.
RW1/B any notice or letter was ever issued. On this point respondent as RW1 has specifically
admitted that whenever petitioner abandoned the job, no notice had been issued. RW1 specifically
admitted that no departmental inquiry was initiated against petitioner even after 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.
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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
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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-
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“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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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.
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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.
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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
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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.
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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:
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“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.
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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.
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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
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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).
_________
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1796
jkti=] fgekpy izns'k] 22 twu] 2016@1 vk"kk<+] 1938
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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