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LOCAL AUDIT DEPARTMENT

NOTIFICATION

Shimla-2, the 8th July, 2016

No. 1-255/74 Fin (LA) Vol-8.—In supersession of this department Notification No. 1-

255/74 Fin (LA) Vol-8 dated 12.04.2016, the Governor, Himachal Pradesh is pleased to promote

Shri Vijay Kumar Walia, Assistant Controller (Class-I-Gazetted) Local Audit Department, H.P. on

regular basis, who was earlier promoted purely on officiating basis under Next Below Rule, with

immediate effect.

Consequent upon the above promotion Shri Vijay Kumar Walia will remain posted for

Audit of various institutions of District Kangra and Chamba with Headquarter at Dharamshala.

By order,

Sd/-

Additional Chief Secretary (Finance).

_________

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 05^th July, 2016

No: Shram (A) 6-2/2016 (Awards).—In exercise of the powers vested under section 17 (1)

of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the

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

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

Pradesh:—

Sr.No:

Case No:

Title of the Case

Date of

Award

19/2015

Sh. Chamba Ram V/s The XEN, IPH, Division

Recong Peo, District Kinnaur.

31-05-2016

25/2014

Sh. Shively V/s -do-

31-05-2016

26/2015

Sh. Jia Lal V/s -do-

31-05-2016

23/2015

Sh. Dev Raj V/S -do-

31-05-2016

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jkti=] fgekpy izns'k] 12 tqykbZ] 2016@21 vk"kk<+ 1938

25/2015

Sh. Inderpur V/S -do-

31-05-2016

20/2015

Sh. Madan Singh V/S -do-

31-05-2016

24/2015

Sh. Dharmani V/S -do-

31-05-2016

21/2015

Sh. Santi Lal V/s -do-

31-05-2016

81/2014

Sh. Guman Singh V/S Dy. Director of Horticulture, Nahan.

11-05-2016

10.

59/2014

Sh. Jeet Chand V/S M/S Patel Engineering Ltd.

18-05-2016

11.

58/2014

Sh Rajvansh Lal V/S -do-

18-05-2016

12.

60/2014

Sh. Kuldeep V/s -do-

18-05-2016

13.

17/2015

Sh. Rajesh Kumar V/s M/S Pyramid Electronics Ltd.

02-05-2016

14.

10/2015

Sh. Onkar Chand V/s M/S Cabcom Casble Ltd.

Kala Amb, Sirmour.

05-05-2016

15.

14/2011

Sh. Pritam Chand V/S M/S Kandhari Beverages Ltd.

20-05-2016

16.

38/2013

Sh. Mohinder Singh V/S Conservator of Forest

05-05-2016

17.

62/2015

Sh. Rupinder Singh V/S The XEN, IPH Division Shimla.

19-05-2016

18.

27/2010 Sh. Mehar Singh V/s M/S Ind. Swift Ltd. Parwanoo.

1-05-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. 19 of 2015.

Instituted on. 9.6.2015.

Decided on 31.5.2016.

Chamba Ram S/o Shri Misar Dass R/o VPO Urni, Tehsil Nichar, District Kinnaur, HP.

. .Petitioner.

Vs.

Executive Engineer, IPH Division Reckong Peo, District Kinnaur, HP.

Assistant Engineer, Sub Division Nichar, District Kinnaur, HP.

. .Respondents.

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

For petitioner

: Shri G.S Negi, Advocate.

For respondent

: Shri H.N Kashyap, ADA.

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AWARD

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

“Whether non-regularization of the services of Shri Chamba Ram S/o Shri Misar Dass

R/o VPO Urni, Tehsil Nichar, District Kinnaur, HP by the Executive Engineer, I&PH

Division Reckong Peo, District Kinnaur, HP on completion of 8 years of continuous

service as per policy of H.P Government as alleged by the workman is legal nad

justified? If not, what relief of regularization and consequential monetary benefits the

aggrieved workman is entitled to from the employer?”

Briefly, the case of the petitioner is that his services had been regularized by the

respondent department w.e.f 2015 whereas he had completed continuous service of eight years in

the year, 2002 by completing 180 days in each calendar year as required in tribal area but his

services had not been regularized within the prescribed period as mentioned for regularizing the

services of daily wager, hence, the respondent had violated the provisions of policy of State

Government. It is further stated that the services of junior persons namely Sumitra Devi, Partap and

Jagmohan have been regularized by the respondent by ignoring the eligibility and seniority of the

petitioner. It is also stated that by regularizing the services of the petitioner after 20 years from the

date of his engagement is straightway illegal and even he (petitioner) had made various oral

requests to the respondent department for considering more than 19 years services for

regularization but his such request was refused by the respondent. Against this back-drop, a prayer

has been made that the services of the petitioner be regularized from the date when the junior

persons to him became regular with full back-wages and seniority.

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

preliminary objections had been taken qua barred by limitation, maintainability and that the

petitioner failed to fulfill the eligibility for regularization. On merits, it has been asserted that the

petitioner has not become eligible for regularization in the year, 2002 as he had not rendered 180

days in each calendar year till the year, 2008. The petitioner has been working continuously by

rendering 180 days in each calendar year from the year, 2008 and had completed eight years of

service on 31.3.2015, hence, he has been regularized to the post of beldar during the year, 2015 as

per instructions of the Government. It is further asserted that the services of the petitioner had been

engaged by the department w.e.f. 1.6.1995 but the petitioner had not rendered 180 days in each

calendar year from 1996 to 2007 whereas Smt. Sumitra Devi, Pratap and Jagmohan have fulfilled

criteria for regularization prior to the petitioner, hence, their services have been regularized. The

name of the petitioner has been considered for his regularization as per the instructions of the

Government and his services had been regularized after completion of eight years of continuous

daily waged service with 180 days in each calendar year. The respondents prayed for the dismissal

of the petition.

4. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which

were struck on 6.1.2016.

1. Whether the non-regularization of the services of petitioner by the respondent on

completion of eight years of continuous service as per policy of HP Government is

illegal and unjustified as alleged?

. .OPP.

If issue no.1 is proved in affirmative to what relief of regularization and consequential

monetary benefits the petitioner is entitled to?

. .OPP.

Whether the petition is time barred as alleged?

. .OPR.

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Whether the petition is not maintainable?

. .OPR.

Relief.

5. Besides having heard the learned counsels for the parties, I have also gone through the

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2

Not entitled to any relief.

Issue no.3

No.

Issue no.4

No.

Relief.

Reference answered in favour of the respondent and against the petitioner

per operative part of award.

Reasons for findings

Issues no. 1.

To prove his case, the petitioner stepped into the witness box as PW-1 and tendered in

evidence his affidavit Ex. PW-1/A wherein he supported all the averments as stated in claim

petition. In cross-examination, he denied that he had not completed 180 days in any calendar year

from the year, 1996 to 2007 and that his services for regularization shall be counted from 2008

onwards. He further denied that his services for regularization have been completed on 31.3.2015.

He also denied that Ms. Sumitra, Pratap and Jagmohan are senior to him. He admitted that he had

been regularized in the department and is continuously working with the department.

On the contrary, the respondents examined one Shri Tilak Raj Pathak, Assistant

Engineer as RW-1, who tendered in evidence affidavit Ex. RW-1/A wherein he supported almost

all the averments as stated in reply. He also tendered in evidence the mandays chart of petitioner

Ex. RW-1/B. In cross-examination, he denied that the petitioner had completed 180 days in a

calendar year. He denied that the department had not followed the government policy and also

violated the mandatory provisions of the policy. He further denied that the petitioner had worked

continuously.

I have considered the contentions of the learned counsel for petitioner as well as

learned ADA for the respondents and also scrutinized the record of the case minutely.

10. After the closer scrutiny of the record, it has become clear that the services of the

petitioner have been regularized by the respondent w.e.f. 22.6.2015. The case of the petitioner is

that he had completed continuous service of eight years with minimum of 180 days in each

calendar year from the date of his initial engagement in the year, 1995 and his services have not

been regularized within the prescribed period for regularizing the daily wager by the respondent in

violation of the mandatory provisions of the policy of the State Government. It is not disputed that

initially the petitioner was engaged in the year, 1995. However, the petitioner has failed to show

that he had become eligible for regularization in the year, 2002. The perusal of the mandays chart

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of the petitioner Ex. RW-1/B, shows that the petitioner has not completed 180 days (as required in

tribal area) in each calendar year w.e.f. the year, 1995 to the year, 2002 except for the year, 1995

rather he completed eight years of continuous service with minimum of 180 days in each calendar

year from the year 2008 onwards. As per mandays chart Ex. RW-1/B, the petitioner had completed

239 days in the year, 2008, 360 days in 2009, 349 days in 2010, 333 days in 2011, 338 days in

2012, 344 days in 2013 and 358 days in 2014 as such it cannot be said that the petitioner was

eligible for regularization in the year, 2002. From the perusal of the policy of State Government for

the regularization of daily waged/contingent paid workers mark C, it is clear that only the services

of those daily waged workers could be considered for regularization who have completed eight

years of continuous service with a minimum of 240 days (except where specified otherwise for the

tribal areas) as on 31.3.2011 against the available vacancies. However, the petitioner had completed

requisite period of regularization as per policy in the year, 2015 as per mandays chart Ex. RW-1/B.

Hence, it cannot be said that the services of the petitioner have not been regularized in terms of the

policy of State Government regarding regularization of daily waged/contingent paid workers.

11. The next contention of the learned counsel for the petitioner is that the services of Smt.

Sumitra Devi, Pratap and Jagmohan, who were juniors to the petitioner, have been regularized prior

to the petitioner by ignoring his seniority and continuity in service. However, except for the bald

statement of the petitioner, no evidence has been led by him that the services of aforesaid persons

have been regularized against the policy of the State Government. On the other hand, RW-1 has

categorically stated in his affidavit by way of evidence Ex. RW-1/A that Smt. Sumitra, Pratap and

Jagmohan had fulfilled the prescribed criteria for regularization prior to the petitioner. Hence, in the

absence of any evidence on record, it cannot be said that the seniority and continuity of the services

of the petitioner have been ignored.

12. Therefore, in view of my aforesaid discussion, it cannot be said that the

nonregularization of the services of the petitioner by the respondent on completion of eight years of

continuous service as per policy of State Government is illegal and unjustified. Accordingly, this

issue is decided against the petitioner and in favour of the respondent.

Issue No. 2

13. Since, the petitioner has failed to prove issue no.1, this issue becomes redundant.

Issue no. 3

14. The learned ADA for respondents contended that the petition filed by the petitioner is

time barred. However, the law on the point is well settled that no limitation is prescribed either

under the Industrial Disputes Act or under the Limitation Act for raising the Industrial Dispute. The

Hon’ble Supreme Court in its various judgments has held that the relief under the Industrial

Disputes Act cannot be denied to the workman merely on the ground of delay. It has been held by

the Hon’ble Supreme Court in in (1999) 6 SCC 82, titled as Ajayab Singh Vs. Sirhind Co

operative Marketing –cumprocessing 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”

15. 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

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

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

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

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

respondent.

Issue no. 4.

16. 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 4, 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 31st day of May, 2016.

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref.

: 25 of 2014.

Instituted on : 13.202014.

Decided on 31.5.2016.

Shivley S/o Shri Damodar Dass C/o Lala Som Prakash & Sons Near HP State Co-operative

Bank, Main Bazar Reckong Peo District Kinnaur, HP.

. .Petitioner.

Vs.

Executive Engineer, I&PH Division, Reckong Peo, District Kinnaur, HP. . .Respondent.

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

For petitioner

: Shri G.S Negi, Advocate.

For respondent

: Shri H.N Kashyap, ADA

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AWARD

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

“Whether termination of services of Shri Shivley S/o Shri Damodar Dass C/o Lala

Som Prakash & Sons, Near HP State Co-operative Bank, Main Bazar Reckong Peo

District Kinnaur, HP by the Executive Engineer, I&PH Division, Reckong Peo,

District Kinnaur, HP on the pretext of allegedly attaining the age of superannuation

on 30.6.2010 by the above employer whereas as per medical certificate dated 18.9.2012

issued by Chairmancum- Senior Medical Superintendent State Medical Board,

DDUZH Shimla HP he was below 45 years during September, 2012 is legal and

justified? If not what benefits including re-instatement, amount of back-wages, salary,

seniority, past service benefits and compensation the above worker is entitled to from

the above employer?”

In nutshell the case of the petitioner is that he was initially engaged as daily wager in

the year, 1990 by the respondent and worked as such till April, 2010 and thereafter his services

were terminated in an illegal and arbitrary manner as no notice as required under Industrial

Disputes Act (hereinafter referred to as Act) was served upon him which amounts to violation of

section 25-F clause (a) and section 25-N of the Act. It is further stated that the petitioner had

completed 240 days in preceding twelve months and had put more than 21 years of service with the

respondent. The petitioner repeatedly approached the respondent for his re-engagement but of no

avail and thereafter on 8.12.2011, he raised a demand notice on which the respondent had agreed to

re-engage the petitioner on production of date of birth certificate if he is found below 60 years. The

petitioner submitted his birth certificate to the respondent but without considering the birth

certificate of the petitioner, he was asked to appear before the Medical Board for his medical

examination upon which he appeared before the Medical Board DDU Hospital Shimla and was

duly examined and thereafter the Medical Board issued a medical certificate regarding his age and

a copy of which was also forwarded to respondent on 19.9.2012 and as per the medical certificate,

the age of petitioner was opined below 45 years. Against this back-drop a prayer has been made for

his re-engagement along-with back-wages, seniority and all other consequential service benefits.

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

preliminary objections had been taken qua maintainability, estoppel and that the claim filed by the

petitioner is afterthought and based on menu plated documents. On merits, it has been asserted that

the petitioner was initially engaged as daily waged beldar in the year, 1990 and as per his mandays

chart, the petitioner left his job on his own during the years, 1990, 1991, 1993 to 1997 and again in

the years, 2004, 2005 & 2006 and since as per office record the petitioner has attained the age of 60

years on 30.6.2010, he was not issued further muster roll beyond attaining the age of 60 years under

the rules. It is further asserted that the petitioner had never completed the requisite years for his

regularization and the junior persons to the petitioner who have completed their continuous

qualifying service of eight years, were regularized according to the prevailing government policy.

The services of the petitioner were never terminated by the respondent and he has never completed

the requisite years for his regularization. The petitioner already completed 60 years as on 30.6.2010

and has also received his retrial benefits i.e gratuity amounting to ` 58442/-. It is also asserted that

the petitioner at different point of time had submitted various date of birth certificates to the

department and in the year, 2010 he submitted a form DPW-Esalary wherein he had mentioned his

date of birth as 1950 and thereafter he submitted another certificate issued by Sathaniya Vikas

Mantralya, Nepal Government wherein his date of birth has been recorded as 2030/3/30 (Vikrami

Samwat) i.e 38 years and even it is also on record that the son of petitioner named Dal Bahadur is

also working with the respondent as daily waged beldar and as per record his date of birth is

17.4.1985 i.e 27 years (in 2010), which reveals that the petitioner is only 11 years older to his son

which cannot be relied and appears to be fake. The respondent prayed for the dismissal of the

petition.

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4. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which

were struck on 24.9.2014.

Whether the services of the petitioner w.e.f. 30.6.2010 were terminated illegally in

violation of the provisions of the Industrial Disputes Act, 1947 as alleged?

. .OPP.

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

to?

. .OPP.

Whether this petition is not maintainable as alleged?

. .OPR.

Whether the petitioner is estopped from filing this petition by his act, conduct etc.?

. .OPR.

Relief.

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

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1 No.

Issue no.2

Becomes redundant.

Issue no.3

No.

Issue no.4

Not pressed.

Relief.

Reasons for findings

Issues no.1.

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

respondent as daily waged beldar w.e.f. 1990 till April, 2010 but his services were illegally

terminated without complying with the provisions of the Act especially when he had completed

more than 240 days in twelve calendar months preceding his termination. He further contended that

the respondent without considering the Medical Certificate issued by the Medical Board in which

his age is mentioned as 40-45 years, had not issued the muster roll in his favour after April, 2010.

He also contended that respondent had retained/regularized juniors to the petitioner which is clear

cut violation of the provisions of section 25-G 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/regularized along-with all the consequential

benefits including back wages.

On the other hand, learned ADA appearing on behalf of the respondent has contended

that the services of the petitioner were never terminated but as per the record since the petitioner

had attained the age of superannuation as on 30.6.2010, no muster roll had been issued in his favour

after the age of 60 years.

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To prove his case, the petitioner stepped into the witness box as PW-1 and tendered his

affidavit Ex. PW-1/A wherein he supported almost all the averments as stated in the claim petition.

He also tendered in evidence the copy of demand notice Ex. PW-1/B, reply to demand notice Ex.

PW-1/C and date of birth certificate mark X, medical examination letter mark Y, letter regarding

issuance of birth certificate mark Z and medical certificate mark Z-1. In cross-examination, he

denied that he had not worked for eight years continuously and that he had not worked w.e.f. 1993

to 1997 and 2004 to 2006. He admitted that gratuity amount of ` 58442/ had been received by him.

He denied that he used to left the work at his choice. He denied that despite issuance of muster roll

for June, 2010, he had not worked. He denied that regarding his date of birth, he had submitted a

false certificate and that he had attained the age of 60 years.

10. PW-2 Dr. A. Banerjee has stated that he was a member of Medical Board constituted

on 18.9.2012 and examined Shir Shivley S/o Shri Damodar Dass who was medically examined for

assessment of age and vide assessment mark Z-1, the age of Shivley was assessed as per radiologist

below 45 years and clinically above 40 years. In cross-examination, he admitted that he has not

brought the original record of mark Z-1 and they have determined the age of Shivley by conducting

the Radiological examination. He further admitted that the Radiologist gives his opinion on the

basis of ossification of the bones and the age determined by the Radiologist is in the range of 2 to 3

years above or less.

11. On the contrary, the respondent examined one Shri Ankit Bisht, Assistant Engineer, as

RW-1, who tendered in evidence his affidavit Ex. RW-1/A wherein he supported almost all the

contents as made in reply. He also tendered in evidence authority letter Ex. RW-1/B, birth

certificate of the petitioner Ex. RW-1/C and mandays chart of petitioner Ex. RW-1/D. In cross

examination, he admitted that initially the petitioner was engaged on daily wages beldar since 1990

and no notice was issued to the petitioner at the time of his termination. But volunteered that on

attaining the age of superannuation, he automatically stood relieved. No letter was issued to the

petitioner in this respect. He admitted that form mark A had been filled in by the department and in

the year, 2010, the department had asked the petitioner to bring his birth certificate and he had

produced the birth certificate Ex. RW-1/C before the department which was not considered. He

further admitted that the department had advised the petitioner to appear before Medical Board and

the certificate issued by the Board mark Z-1, was received by the department. He denied that

certificate mark-B has been procured fraudulently.

12. I have considered the contentions of the learned counsel for petitioner as well as

learned ADA for respondent and also scrutinized the record of the case minutely.

13. After the closer scrutiny of the record, it has become clear that the petitioner was

initially engaged by the respondent as daily waged beldar in the year, 1990. It is also not disputed

that as per general principles/rules, the retirement age of class-IV employees is 60 years. As per the

case of the respondent since the petitioner has attained the age of 60 years on 30.6.2010 as per the

official record, therefore, he was not issued further muster roll beyond attaining the age of 60 years.

It is also not in dispute that the petitioner has received his retiral benefits i.e gratuity amounting to `

58,442/-. The perusal of the record reveals that the petitioner had submitted different date of birth

certificates at different points of time before the respondent. In the year, 2010 he also submitted E

salary form, mark A, in which he has mentioned his date of birth as 1950 and the aforesaid form

has been duly acknowledged by him by putting his signatures. It is not the case of the petitioner

that the aforesaid form had not been signed by him. Thereafter, the petitioner had submitted his

date of birth certificate issued by Sthaniya Vikas Mantralaya, Nepal Government, Tatopani, Jumla

wherein his date of birth has been recorded as 2030/3/30 (Vikrami Samvat) which means that in the

year, 2010 his age was about 38 years. It is also not disputed that the son of the petitioner namely

Shri Dal Bahadur is also working with the respondent as daily waged beldar and as per his service

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record his date of birth is 13.1.1985, the copy of which is mark B, which means that in the year,

2010, his age was 27 years. If both the aforesaid certificates are taken into consideration then it is

revealed that the petitioner is only 11 years older to his son which is not possible and therefore, the

certificate procured by the petitioner from Sthaniya Vikas Mantralaya, Nepal Government,

Tatopani, Jumla Ex. RW-1/C appears to be fake and cannot be relied upon.

14. Thereafter, the petitioner submitted a medical certificate and in support of that he

examined PW-2 Dr. A Banerjee, who stated that the petitioner was medically examined for

assessment of age and vide certificate mark Z-1, the age of the petitioner was assessed below 45

years as per the opinion of Radiologist and clinically above 40 years. However, no original record

has been produced by the petitioner with respect to his medical examination. In a decision

reported in 1992 3 SCC 204, titled as Madan Lal Kakkad Vs. Naval Dubey and another, it has

been held by the Hon’ble Apex Court that the evidence given by the Medical Officer is only of an

advisory character and the expert witness is expected to put before the Court all the materials which

induced him to come to the conclusion. The relevant portion of the aforesaid judgment reads as

under:

“A medical witness called in as an expert to assist the Court is not a witness of fact and the

evidence given by the medical officer is really of an advisory character given on the basis of

the symptoms found on examination. The expert witness is expected to put before the Court

all materials inclusive of the data which induced him to come to the conclusion and

enlighten the Court on the technical aspect of the case by explaining the terms of science so

that the Court although, not an expert may form its own judgment on those materials after

giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is

not the opinion of the medical officer but of the Court.

However, in the present case no original record has been produced either by the petitioner

or by PW-2 Dr. A Banerjee, in respect of his medical examination. The Doctor has also failed to

place all the materials before this Court which induced the medical board to come to the

conclusion. Besides, the aforesaid medical certificate mark Z-1 issued by the Medical Board is only

in the form of an opinion and there is no certainty of the correct age as found in the medical

opinion. Since, there are contrary evidences regarding the date of birth of the petitioner, in that

event, it cannot be said that the age opined by the medical board is conclusive final and binding.

Hence, the aforesaid medical certificate which is in the form of only an opinion and totally contrary

to the service record of the petitioner cannot be considered to prevail upon the same in which his

year of birth has been recorded as 1950. Moreover, the petitioner slept over his right to get his date

of birth altered in the service record for more than 20 years and woke up from his deep slumber

only at the fag end of his carrier without explaining the inordinate delay. Such belated and stale

claim for alternation of date of birth recorded in the service book which has been made after more

than 20 years without any explanation for the delay cannot be considered in the absence of any

cogent and satisfactory evidence on record led by the petitioner. The burden was on the petitioner

to prove that he had not attained the age of 60 years as on 30.6.2016 but he has miserably failed to

discharge his burden. Therefore, in view of the facts and circumstances of the present case, it

cannot be said that the services of the petitioner were terminated illegally.

15. The further case of the petitioner is that after the termination of his services, the

respondent had retained various persons junior to him and they have been regularized by the

department. However, except for the bald statement of the petitioner, no evidence has been led by

him to show that his juniors have been regularized by the respondent against the policy of the State

Government. The petitioner has also failed to lead any evidence with respect to the fact that he has

completed the requisite years of continuous service for regularization as per the Policy of the

Government. Moreover, as per my observations supra, the services of the petitioner were never

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terminated rather on attaining the age of superannuation, he was considered retired as on 30.6.2010,

hence, it cannot be said that the respondent had violated the provisions of sections 25-G & H of the

Act.

16. Therefore, in view of my aforesaid discussion, it cannot be said that the termination of

the services of the petitioner w.e.f. 30.6.2010 by the respondent is illegal and unjustified.

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

Issue No. 2

17. Since, the petitioner has failed to prove issue no.1, this issue becomes redundant.

Issue no. 3

18. 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.

Issue no. 4

19. During the course of arguments, this issue was not pressed by the respondent, hence,

the same 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 4, 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 31st day of May, 2016.

(Sushil Kukreja)

Presiding Judge,

Industrial Tribunal-cum-

Labour Court, Shimla.

___________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. 26 of 2015.

Instituted on. 9.6.2015.

Decided on 31.5.2016.

Jiya lal S/o Shri Mogal Dass R/o VPO Urni, Tehsil Nichar, District Kinnaur, HP.

. .Petitioner.

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Vs.

Executive Engineer, IPH Division Reckong Peo, District Kinnaur, HP.

Assistant Engineer, Sub Division Nichar, District Kinnaur, HP.

. .Respondents.

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

For petitioner :

Shri G.S Negi, Advocate.

For respondent :

Shri H.N Kashyap, ADA.

AWARD

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

“Whether non-regularization of the services of Shri Jiya lal S/o Shri Mogal Dass R/o

VPO Urni, Tehsil Nichar, District Kinnaur, HP by the Executive Engineer, I&PH

Division Reckong Peo, District Kinnaur, HP on completion of 8 years of continuous

service as per policy of H.P Government as alleged by the workman is legal and