jkti=] fgekpy izns'k

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

lkseokj] 11 tqykbZ] 2016@20 vk"kk<+ 1938

fgekpy izns'k ljdkj

HIGHER EDUCATION DEPARTMENT

NOTIFICATION

Shimla-171002, 24^th June, 2016

No. EDN-B-B(16)-17/2011.—WHEREAS Smt. Sarita Sharma, Principal, O/O Director of

Elementary Education, H.P. Shimla-171001 has given three months notice for seeking pre-mature

retirement from service in accordance with sub Rule (2) of Rule 3 of the Himachal Pradesh Civil

Service (Pre-mature Retirement) Rules, 1976.

70&jkti=@2016&11&07&2016

¼2113½

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NOW THEREFORE, the Governor of Himachal Pradesh in exercise of powers vested in

him under the rules ibid is pleased to accept the notice given by Smt. Sarita Sharma and orders that

Smt. Sarita Sharma, Principal shall stand retired from Government service w.e.f. 31-07-2016.

By orders,

Sd/-

Addl. Chief Secretary (Education.

________

HIGHER EDUCATION DEPARTMENT

NOTIFICATION

Shimla-171002, 30^th June, 2016

No. EDN-B-A(16)-1/2016-loose.—WHEREAS Sh. Ashok Kumar Gautam, Principal, Govt.

Sr. Sec. School, Rajiana Bandh, District Kangra has given three months notice for seeking pre-

mature retirement from service in accordance with sub Rule (2) of Rule 3 of the Himachal Pradesh

Civil Service (Pre-mature Retirement) Rules, 1976.

NOW THEREFORE, the Governor of Himachal Pradesh in exercise of powers vested in

him under the rules ibid is pleased to accept the notice given by Sh. Ashok Kumar and orders that

Sh. Ashok Kumar, Principal, GSSS Rajiana Bandh, District Kangra shall stand retired from

Government service w.e.f. 31-07-2016.

By orders,

Sd/-

Addl. Chief Secretary (Education).

_________

HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

NOTIFICATION

Dated : 1^st July, 2016

No. HHC/Rules.22(25)/83.—In exercise of the powers conferred under Rule 2(1)(g)(i) &

(ii) read with Rule 5 of the Himachal Pradesh Judicial Service Rules, 2004, the High Court of

Himachal Pradesh is pleased to make the following amendments in “The Himachal Pradesh

Judicial Service (Syllabus and Allocation of Marks) Regulations, 2005”, for the cadre of Civil

Judges(Junior Division):—

Short title

These Regulations shall be called “The Himachal Pradesh Judicial

Service (Syllabus and Allocation of Marks) (6th Amendment-2016),

Regulations 2005.

Commencement 2

These Regulations shall come into force with immediate effect.

Amendments

3(I)

In the existing Regulation No. 3 (ii), “Main

Examination”, the word “ten” shall stand deleted and substituted by

“twenty”.

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After amendment, the relevant part of this Regulation shall read as

under:—

“On the basis of merit obtained in the Preliminary examination, the

candidates equal to twenty times of the number of vacancies to be

filled in shall be called for taking the main examination.”

3(II)

In the existing Regulation No. 6(v), the following proviso shall be added

as under:—

“Further provided that a candidate shall also be required to

obtain at least 45% of the marks allocated for the interview, failing

which he will be deemed to have not qualified the competitive

examination.”

After amendment, this Regulation shall read as under:—

“6(v) That out of the candidates who qualify written examination

prescribed above, for each vacancy three candidates shall be called

for viva voce strictly in order of merit obtained in the written

examination. Category wise merit list shall be drawn up so that the

requisite number of candidates are called for each category as per the

vacancies, reserved for each category.

Further provided that a candidate shall also be required to

obtain at least 45% of the marks allocated for the interview, failing

which he will be deemed to have not qualified the competitive

examination.”

By order,

High Court of Himachal Pradesh

Registrar General.

____________

PERSONNEL DEPARTMENT

Appointment-II

CORRIGENDUM

Shimla, the 8th July, 2016

No. Per (AP-B)A(1)-1/2013.—In partial modification of this Department’s Notification No.

Per(AP-B)A(1)1/2013 dated 18th May, 2016, the classification in respect of the post of Daftri

appearing at serial number 20 in the SCHEDULE may be read as “Class-IV” instead of “Class-III”.

By order,

(RAM SINGH RANOT),

Under Secretary (Personnel).

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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dharamshala, the 08^th June, 2016

No: Shram (A) 6-2/2014 (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

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

Pradesh:—

Sr.No.

Ref. No.

Petitioner

Respondent

Date

Award/Order

120/15

Prem Singh

E.E.HPPWD, Killar

01-04-2016

126/15

Dem Chand

E.E.HPPWD, Killar

01-04-2016

96/15

Chippan Dev

E.E.HPPWD, Killar

01-04-2016

204/15

Suni Lal

E.E.HPPWD, Killar

01-04-2016

128/15

Sant Ram

E.E.HPPWD, Killar

01-04-2016

160/15

Kishan Chand

E.E.HPPWD, Killar

01-04-2016

163/15

Bhisham Singh

E.E.HPPWD, Killar

01-04-2016

164/15

Dharam Chand

E.E.HPPWD, Killar

01-04-2016

166/15

Des Raj

E.E.HPPWD, Killar

01-04-2016

10.

167/15

Ful Dei

E.E.HPPWD, Killar

01-04-2016

11.

172/15

Ram Lal

E.E.HPPWD, Killar

01-04-2016

12.

173/15

Shambhu Ram

E.E.HPPWD, Killar

01-04-2016

13.

84/15

Parma Ram

E.E.HPPWD, Joginder Nagar

07-04-2016

14.

317/15

Sushil Kumar

M/S Seagull Laboratories

09-04-2016

15.

102/14

Kamal Kumar

Factory

Manager

M/S

Industries

09-04-2016

16.

81/15

Prem Kumar

M/s Causlight telecom Una

09-04-2016

17.

65/15

Devender Singh

E.E.Changar Area, Bilaspur

09-04-2016

18.

516/15

Papu Kumar

Member

Secy.Rogi

Kalyan,

Kullu

09-04-2016

19.

295/14

Swari Devi

E.E. HPPWD, Joginder Nagar

09-04-2016

20.

298/14

Kaushlya Devi

E.E. HPPWD, Joginder Nagar

09-04-2016

21.

47/14

Kahan Singh

E.E. HPPWD, Joginder Nagar

09-04-2016

22.

330/14

Mast Ram

E.E. HPPWD, Joginder Nagar

09-04-2016

23.

614/15

President

Nestle

Employees U

Factory

Manager

Nestle

Tahliwal

09-04-2016

24.

289/14

Shakuntla Devi

E.E. HPPWD, Joginder Nagar

22-04-2016

25.

324/14

Giru Ram

D.F.O. Shamshi

22-04-2016

26.

325/14

Tara Devi

D.F.O. Shamshi

22-04-2016

27.

115/15

Suresh Chand

Dist. Sericulture Officer

22-04-2016

28.

192/15

Seeta Devi

E.E.HPPWD, Joginder Nagar

23-04-2016

29.

56/14

Hem Singh

E.E.HPPWD, Joginder Nagar

23-04-2016

30.

373/15

Godda Devi

E.E. HPPWD, Dharampur

23-04-2016

31.

423/15

Satish Kumar

E.E. HPPWD, Dharampur

23-04-2016

32.

375/15

Daulat Ram

E.E. HPPWD, Dharampur

23-04-2016

33.

374/15

Hem Singh

E.E. HPPWD, Dharampur

23-04-2016

34.

140/11

Rajesh Kumar

E.E.HPSEB, Joginder Nagar

23-04-2016

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35.

12/13

Sidhu Ram

D.F.O. Sunder Nagar

26-04-2016

36.

369/15

Pratap Chand

HPSEB, Baijnath

29-04-2016

37.

229/15

Ravi Kumar

E.E.HPPWD, Joginder Nagar

30-04-2016

38.

227/15

Subhash Chand

E.E.HPPWD, Joginder Nagar

30-04-2016

39.

236/15

Mintu Ram

E.E.HPPWD, Joginder Nagar

30-04-2016

40.

222/15

Sarwan Kumar

E.E.HPPWD, Joginder Nagar

30-04-2016

41.

224/15

Meera Devi

E.E.HPPWD, Joginder Nagar

30-04-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

_________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 120/2015

Date of Institution : 13.03.2015

Date of Decision : 01.04.2016

Shri Prem Singh s/o Shri Tej Singh, r/o Village and P.O. Shahli, 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 Prem Singh S/O Shri Tej Singh,

R/O Village and Post Office Shahli, Tehsil Pangi, District Chamba, H.P. before the

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

dated 18.8.2010 regarding his alleged illegal termination of service w.e.f. August, 2004

suffers from delay and latches? If not, Whether termination of the services of Shri Prem

Singh S/O Shri Tej Singh, R/O Village and Post Office Shahli, Tehsil Pangi, District

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

H.P. w.e.f. August, 2004 without complying the provisions of the Industrial Disputes Act,

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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.

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 June, 1996 who continuously worked till August, 2004 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 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 September, 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 June, 1996 to August, 2004 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.

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 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 para no. 4 of the claim

petition that Shri Dev Raj s/o Shri Mehar Chand was senior to petitioner and other persons

mentioned in this para are continuously worked with the respondent/department. 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 chargesheet or issuing any notice of petitioner after his termination. It is contended

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

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

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

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

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 coworkers 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:

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.

Relief.

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

Issue No.1

: Yes

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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 1996 who continuously worked till 2004 at HPPWD Sub Division Sach

is not in dispute. Admittedly, petitioner was engaged without any written order or settlement of

terms and conditions by the respondent. It is equally not in dispute that no written order was passed

while terminating service of the petitioner as claim of respondent remains that it had not retrenched

petitioner from service who had abandoned the job of his own and used to work intermittently as

per his own wish and convenience. Admittedly, the reference of appropriate govt. does not relate to

plea of fictional breaks but only with regard to petitioner’s termination from service. In the

backdrop of foregoing admitted facts on record, claim of petitioner requires to be adjudicated with

a view to determine if petitioner is entitled for relief of reinstatement and back wages alongwith

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, 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 2010 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 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 85 days in the year 1996, 145 days in 1997, 88 days in 1998, 25 days in 1999, 19 days

in 2001, 122.5 days in 2002, 116 days in 2003 and 44 days in 2004 and thus a total of his service in

1996 to 2004 in 9 years he had worked for 663.5 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 106 days and thus immediately in preceding 12 calendar

months from the month of termination of petitioner had not rendered service of 160 days so as to

meet requirement of law of having continuous service of one year and thus it was not at all required

from respondent to have issued a notice envisaged under Section 25-F of the Act. As such, the

respondent is held to have not violated the provisions of Section 25-F of the Act.

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

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

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

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

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

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

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

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

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, 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 coworkers 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.

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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 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

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 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 Marketing-cum- Processing

Society Limited and Another, (1999) 6 SCC 82 in which it has been held that the principle of

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

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

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

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

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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 appellant employer within six weeks failing

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

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

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

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

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

relief”.

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

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

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

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

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

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

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

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

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

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

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

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

whereas his services have been terminated in 1986 and he raised industrial dispute after six

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

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

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

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

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

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

court factors which have weighed are that the petitioner in all remained engaged for about 9

years and actually worked for 663.5 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 18.08.2010. 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 lumpsum would be appropriate relief in

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

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

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

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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 statedabove. 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 1st day of April, 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. : 126/2015

Date of Institution : 18.03.2015

Date of Decision : 01.04.2016

Shri Dem Chand s/o Shri Govind Ram, r/o Village Findroo, 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 Dem Chand S/O Shri Govind

Ram, R/O Village Findroo, 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 23-10-2011 regarding his alleged illegal termination of service during

September, 2004 suffers from delay and laches? If not, Whether termination of the services

of Shri Dem Chand S/O Shri Govind Ram, R/O Village Findroo, P.O. Sach, Tehsil Pangi,

District Chamba, H.P. during September, 2004 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

month of May, 1994 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

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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 1^st 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 May,

1994 to September, 2004 be counted 160 days continuous service and regularization of the service

of petitioner w.e.f. 01.01.2002 having completed 8 years of service and per the policy of HP Govt.

in pursuance to judgment of Hon’ble Apex Court titled as Rakesh Kumar vs. State of H.P. and to

any other relief petitioner is entitled.

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 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.

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