jkti=] fgekpy izns'k

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

cq/kokj] 20 tqykbZ] 2016@29 vk"kk<+ 1938

fgekpy izns'k ljdkj

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Dated 11^th July, 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,

77&jkti=@2016&20&07&2016

¼2625½

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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

283/15

Jamna

E.E.HPPWD, Killar

05-05-2016

281/15

Dalima

E.E.HPPWD, Killar

05-05-2016

328/15

Jog Singh

E.E.HPPWD, Killar

05-05-2016

278/15

Chhetter

Dei E.E.HPPWD, Killar

05-05-2016

326/15

Bhuri Singh

E.E.HPPWD, Killar

05-05-2016

282/15

Shridhar

E.E.HPPWD, Killar

05-05-2016

401/15

Satish Kumar

E.E.HPPWD, Killar

05-05-2016

277/15

Thulli Devi

E.E.HPPWD, Killar

05-05-2016

411/15

Dharsi Devi

E.E.HPPWD, Killar

05-05-2016

10.

276/15

Thuli Devi

E.E.HPPWD, Killar

05-05-2016

11.

90/15

Sarla Devi

Principal, Govt. Sr.Sec.School

05-05-2016

285/14

Thakur Singh

E.E.HPPWD, J/Nagar

05-05-2016

307/14

Phulla Devi

E.E.HPPWD, J/Nagar

05-05-2016

319/14

Rati Devi

E.E.HPPWD, J/Nagar

05-05-2016

327/14

Leela Devi

E.E.HPPWD, J/Nagar

05-05-2016

354/14

Geeta Devi

E.E.HPPWD, J/Nagar

05-05-2016

384/14

Masti Devi

E.E.HPPWD, J/Nagar

05-05-2016

18.

225/15

Soni Kumar

E.E.HPPWD, J/Nagar

05-05-2016

35/15

Jagdish Chand

E.E.HPPWD, J/Nagar

05-05-2016

223/15

Durjan Singh

E.E.HPPWD, J/Nagar

05-05-2016

320/15

Vyasa Devi

E.E.HPPWD, Dharampur

06-05-2016

293/15

Suresh Kumar

E.E.HPPWD, Dharampur

06-05-2016

396/15

Prabh Dyal

E.E.HPPWD, Dharampur

06-05-2016

05/15

Pradhan

Secy.

Handloom

M.D. HP State Handloom Corp.

09-05-2016

25.

146/16

Anand Chandra

M/S GVK EMRI & Others

17-05-2016

607/15

Jai Ram

D.F.O. Chamba

17-05-2016

609/15

Sanjay Kumar

D.F.O. Chamba

17-05-2016

113/16

Narinder Kumar

E.E. HPPWD, Chamba

18-05-2016

239/15

Bansi Lal

E.E. I&PH/HPPWD,

18-05-2016

238/15

Rok Nand

E.E. I&PH/HPPWD,

18-05-2016

240/15

Puran Dei

E.E. I&PH/HPPWD,

18-05-2016

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154/15

Ram Singh

E.E. HPPWD, Killar

18-05-2016

28/14

Jagdish Chand

E.E.HPPWD, J/Nagar

25-05-2016

353/14

Sansar Chand

E.E.HPPWD, J/Nagar

25-05-2016

390/14

Nirmla Devi

E.E.HPPWD, J/Nagar

25-05-2016

27/15

Prakash Chand

E.E.HPPWD, J/Nagar

25-05-2016

228/15

Malkeet Khan

E.E.HPPWD, J/Nagar

25-05-2016

233/15

Nupa Ram

E.E.HPPWD, J/Nagar

25-05-2016

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.

: 283/2015

Date of Institution

: 13.07.2015

Date of Decision

: 05.05.2016

Smt. Jamna w/o Shri Desh Raj, r/o Village Kutha, P.O. Darwas, Tehsil Pangi, District

Chamba, H.P.

….Petitioner.

Versus

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. O.P. Bhardwaj, Adv.

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. Jamna W/O Shri Desh Raj, R/O

Village Kutha, P.O. Darwas, 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 26.12.2011 regarding her alleged illegal termination of service during

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

of Smt. Jamna W/O Shri Desh Raj, R/O Village Kutha, P.O. Darwas, Tehsil Pangi, District

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

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District Chamba, H.P. during September, 2004 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 as enumerated in 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 year

1994 who continuously worked till October, 2004 with the respondent. Averments made in the

petition further revealed that petitioner had worked for 160 days in each calendar year as the

criteria 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 orally without issuing any one month notice in writing indicating

the reason for retrenchment besides no retrenchment compensation was paid to petitioner while

respondent had illegally terminated her service. It is contended that respondent had not followed

the provisions of Section 25-F of the Act while disengaging the services of petitioner. It is stated

that petitioner is very poor and no source of income besides after termination of the services of

petitioner, she had approached the respondent time and again but of no avail. Grievance of

petitioner further remains that when the services of petitioner have been terminated,

respondent/department had reengaged number of new workman from time to time and respondent

had not followed the principle of ‘Last come, First go’ as envisaged under Section 25-G of the Act.

It is further alleged that respondent/department had continuously retained junior to petitioner and

who are still in service with the respondent namely Hukam Chand who appointed in 1997, Jai Dass

in 1998, Budhi Ram in 2003, Dev Raj in 2007, Sher Singh in 2011, Bameshwar Dutt in 2011 and

Raj Kumar in 2011. 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 him. The petitioner also alleges that she has remained

unemployed ever since her illegal termination from month of October, 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 October, 2004. She further prayed

for reinstatement in service w.e.f. month of October, 2004 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 1996 to October, 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 law settled by Hon’ble

High Court 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

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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 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 in para no. 10 of the

claim petition were appointed as per order of Labour Court and no other juniors to the petitioner

had been retained in service by the respondent. 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.10 are

stated to have engaged as per direction of the Labour Court-cum-Industrial Tribunal Dharamshala

and respondent had not violated the principle of ‘Last come, First go’. It is also contended that if

petitioner had been terminated in 2004 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, copy of demand notice Ex. PW1/B, copy of reply

dated 4.5.2012 Ex. PW1/C, copy of report under Section 12(4) I.D. Act Ex. PW1/D, copy of order

dated 30.5.2015 Ex. PW1/E, copy of order dated 28.2.2011 Ex. PW1/F and Ex. PW1/G mandays

chart and closed evidence. On the other hand, repudiating the evidence led by the petitioner,

respondent examined RW1 Shri Bal Krishan Kapil, the then Executive Engineer, HPPWD Division

Killar as RW1 tendered/proved mandays chart of petitioner Ex. RW1/B, Ex. RW1/C copy of

mandays chart of co-workers, Ex. RW1/C1 to Ex. RW1/C7 copy of orders/awards and closed the

evidence.

7. I have heard the ld. counsel 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 27.11.2015 for

determination:

1. Whether the industrial dispute raised by petitioner vide demand notice dated

26.12.2011 qua her termination of service during September, 2004 by respondent

suffers from the vice of delay and laches as alleged? If so, its effect?

…OPP.

2. Whether termination of services of the petitioner by the respondent during September,

2004 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 formas alleged?

...OPR.

Relief.

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

Issue No.1 : Yes

Issue No.2 : Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief. : Petition is partly allowed awarding compensation Rs.1,00,000/- per operative part

of award.

REASONS FOR FINDINGS

ISSUES NO.1 TO 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 year 1996 continuously worked till September, 2004 with the respondent 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 1996 to September, 2004. 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, 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 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

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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, 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 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 47 days in the year 1996, 155 days in 1997, 162 days in 1998, 128 days in 1999, 149

days in 2000, 117 ½ days in 2001, 150 days in 2002, 131 days in 2003 and 105 days in 2004 and

thus a total of her service in 1996 to 2004 in 9 years she had worked for 1144.5 days in her entire

service period. Be it noticed that except the year 1998 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

105 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. counsel for petitioner has contended with vehemence that large number of workers

who were junior to petitioner had been appointed 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. RW1/C is the year-wise mandays of daily waged workers who were

junior to the petitioner and had joined in the year 2000 or thereafter. All of these co-workers shown

in Ex. RW1/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.10 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

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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/C1 to Ex RW1/C7. 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/C1 to Ex. RW1/C7 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. counsel for petitioner has contended that after petitioner’s termination in

September, 2004, 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 petitieonr 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:

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“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 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:—

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“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. Dy. D.A. 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.

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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 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”.

21. Repudiating the arguments by ld. Dy. D.A. for the State, ld. counsel for

claimant/petitioner has relied upon the judgment of Hon’ble Apex Court in case titled as Tapash

Kumar Paul vs. BSNL & another reported in AIR 2015 SC 357 wherein Hon’ble Court held

that a Court may pass an order of reinstatement by awarding compensation but the same has to

be based on justifiable grounds. In this judgment, it was held that compensation can be granted

in a situation where the industry is closed or that employees has superannuated or going to

retire shortly and no period is left to his credit or where workman has been rendered in

capacitated to discharge duties cannot be reinstated and/or fourthly when he has lost confidence

of the management to discharge duties. It was observed that there may be appropriate cases on

facts which may justify substituting an order of reinstatement by award of compensation but

that has to be supported by some legal and justifiable reasons indicating why the

reinstatement should be followed to be substituted by award of compensation. Ld. counsel

for the petitioner with the aid of above-said judgment had argued that there are only four

situations when a worker may be awarded compensation instead of reinstatement but the

judgment has certainly not been correctly appreciated by ld. counsel as this judgment postulates

probable four situations which are illustrate in nature where compensation may be awarded

instead of reinstatement but that does not mean that except the four grounds, no other ground

would be appropriate for awarding compensation. In the case in hand before this court, it has come

that petitioner had abandoned the job who did not report for duty for several years and later

gave notice requesting for joining of duties but the conditions in para no.5 of judgment (2015

supra) even if not met requirement, cannot be a ground to reinstate the petitioner and it is

only compensation which would be appropriate relief. Ld. counsel for the petitioner has

relied upon the judgment of Hon’be Apex Court titled as Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidyalaya (D.Ed.) and Ors. reported in AIR 2014 SC (Supp) 121,

Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014(3) Apex

Court Judgments 652. I have gone through these judgments and of view that they don’t come to

rescue the petitioner on point of reinstatement instead of compensation. Ld. Dy. D.A. for State

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on the other hand has relied upon the judgment of Hon’ble Apex Court in Vice Chancellor,

Lucknow University, Lucknow, Uttar Pradesh v. Akhilesh Kumar Khare & another reported

in AIR 2015 SC 3473. It has been contended that engagement of claimant/petitioner in this

case was not through regular mode of recruitment and applying the ratio of this judgment AIR

2015 SC supra, claim of petitioner for reinstatement can be negated and thus compensation

would be sufficient for redressal of grievance of the claimant/petitioner. Similarly, in 2016 (1)

Him. L.R. 502 titled as State of Himachal Pradesh and another vs. Chaman Singh relied by

ld. AR for petitioner interpretation of Section 137 of Limitation Act was involved which

provides that Article 137 of Limitation Act did not apply to industrial disputes. In 2014 (3)

Apex Court Judgment 652 (SC) similar view was reiterated which clearly mandates that

claimant/petitioner cannot be denied relief sought for merely on the ground of delay and laches.

That being so, the law remains as it was that ground of delay and laches, claimant/petitioner

cannot be denied relief rather the court has to consider various aspects before moulding

relief and the case in hand it would not be erroneous to mention here that the

claimant/petitioner can be reasonably indemnified by ordering compensation and not by

reinstatement. In so far as judgment of AIR 2015 SC 1373 titled as Mackinon Machenize &

Company Ltd. vs. Mackinon Employees Union is concerned, the Hon’ble Apex Court has held

on closure of unit of company principle of ‘Last come First go’ was not followed which

violated Section 25-G of Industrial Disputes Act and retrenchment was held illegal entitling

petitioner for retrenchment compensation. Since the facts of case of Mackinon Machenize’s

case are different from case in hand as in former closure of unit of company was involved

whereas in case in hand before this court, there is no closure of company rather it is the

department of HPPWD which had engaged petitioner without following of the procedure

although subject to funds and availability of work but in the case in hand petitioner had

abandoned the job who never reported for duty. As such, when there is no closure of any unit by

respondent which the petitioner was engaged, judgment of Mackinon Machenize cannot be

made applicable.

22. After hearing the rival contentions of the parties and case law relied by them,

it can be safely concluded that delay in raising industrial dispute is certainly important

aspect/circumstance which court has to keep in mind while exercising discretion. In para nos.

20 and 21 of the judgment as referred to in this case reported in 2013 (136) FLR 893 (SC)

titled as Assistant Engineer Rajasthan Development Corporation and another vs. Geetam

Singh provides that before exercising its judicial discretion, the Labour Court or Tribunal has

to keep in mind 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 delay in

raising industrial dispute before grant of relief. 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 her services have been terminated in 1986 and she 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 1144.5 days as per mandays chart on record and that the services of petitioner were disengaged

in September, 2004 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 26.12.2011.

Taking into consideration factors mentioned above in pursuance to judgments of Hon’ble Apex

Court referred to above, petitioner would not be entitled either for reinstatement or for back wages

but a lump-sum compensation would be appropriate relief in view of judgment 2013 (139) FLR

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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. I

have gone through these judgments which are not attracted in this present case as this court not

declining relief to the petitioner on the ground of limitation rather on the basis of guidelines of

Hon’ble Apex Court laid down in judgment of 2013.

23. In view of foregoing discussion, a lump-sum compensation of Rs.1,00,000/-

(Rupees one lakh only) would be 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 four months from the date of Award failing which the

petitioner would be entitled for interest @ 9% per annum from date of Award till its

realization. Issues no. 1 to 3 are answered accordingly.

ISSUE NO. 4

24. 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

25. As sequel to my findings on foregoing issues, the respondent is hereby directed to pay

the compensation of Rs.1,00,000/- (Rupees one lakh only) to the petitioner in lieu of the

reinstatement in services as well as the other consequential service benefits. Amount of

compensation so awarded will 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.

26. The reference is answered in the aforesaid terms.

27. A copy of this Award be sent to the appropriate Government for publication in

the official gazette.

28. File, after due completion be consigned to the Record Room. Announced in the open

Court today this 5^th day of May, 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. : 281/2015

Date of Institution : 13.07.2015

Date of Decision : 05.05.2016

Smt. Dalima d/o Shri Bhukh Ram, r/o Village Shour, P.O. Purthi, Tehsil Pangi, District

Chamba, H.P.

….Petitioner.

Versus

Executive Engineer, Killar Division, 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. O.P. Bhardwaj, Adv.

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. Dalima D/O Shri Bhukh Ram,

R/O Village Shour, P.O. Purthi, 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 07.05.2012 regarding her alleged illegal termination of

service during September, 2004 suffers from delay and latches? If not, Whether

termination of the services of Smt. Dalima D/O Shri Bhukh Ram, R/O Village Shour,

P.O. Purthi, Tehsil Pangi, District Chamba, H.P. by the Executive Engineer, Killar

Division H.P.P.W.D. Killar, Thesil Pangi, District Chamba, H.P. during September,

2004 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?”

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 as enumerated in 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 year 1991 who continuously worked till October, 2004 with the respondent. Averments made

in the petition further revealed that petitioner had worked for 160 days in each calendar year as

the criteria 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

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applicability of Section 25-B of the Act. The grievance of petitioner remains that

respondent/department had terminated/disengaged petitioner from daily wage service orally

without issuing any one month notice in writing indicating the reason for retrenchment besides

no retrenchment compensation was paid to petitioner while respondent had illegally terminated

her service. It is contended that respondent had not followed the provisions of Section 25-F of the

Act while disengaging the services of petitioner. It is stated that petitioner is very poor and

no source of income besides after termination of the services of petitioner, she had approached

the respondent time and again but of no avail. Grievance of petitioner further remains that

when the services of petitioner have been terminated, respondent/department had reengaged

number of new workman from time to time and respondent had not followed the principle of

‘Last come, First go’ as envisaged under Section 25-G of the Act. It is further alleged that

respondent/department had continuously retained junior to petitioner and who are still in service

with the respondent namely Kram Dev who appointed in 1997, Sher Singh in 1996, Bameshwar

Dutt and Raj Kumar in 2011, Ram Dei in 2003 and Dev Raj in 2004. 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 him. The petitioner also alleges that she has remained unemployed ever since

her illegal termination from month of October, 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 October, 2004. she further prayed for

reinstatement in service w.e.f. month of October, 2004 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 1991 to October, 2004 be

counted 160 days continuous service and regularization of the service of petitioner w.e.f.

01.01.1999 having completed 8 years of service and per the policy of HP Govt. in pursuance to

law settled by Hon’ble High Court 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 1993 who remained

engaged till 2004 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 in para no. 10 of the claim petition were appointed as per order of Labour Court and

no other juniors to the petitioner had been retained in service by the respondent. 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.10 are stated to have engaged as per direction

of the Labour Court-cum-Industrial Tribunal Dharamshala and respondent had not violated the

principle of ‘Last come, First go’. It is also contended that if petitioner had been terminated in

2004 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

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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.

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.

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, copy of demand notice

Ex. PW1/B, copy of reply dated 6.10.2012 Ex. PW1/C, copy of report under Section 12(4) of

I.D. Act Ex. PW1/D, Ex. PW1/E copy of order dated 30.5.2015, Ex. PW1/F copy of order dated

28.2.2011 and Ex. PW1/G mandays cahrt and closed evidence. On the other hand, repudiating

the evidence led by the petitioner, respondent examined RW1 Shri Bal Krishan Kapil, the then

Executive Engineer, HPPWD Division Killar as RW1 tendered/proved mandays chart of

petitioner Ex. RW1/B, Ex. RW1/C1 to Ex. RW1/C6 copy of orders/awards and closed the

evidence.

I have heard the ld. counsel of petitioner and ld. Dy. D.A. representing respondent,

gone through records of the case carefully relevant for disposed of this case.

From the contentions raised, following issues were framed on 27.11.2015 for

determination:

Whether the industrial dispute raised by petitioner vide demand notice dated

07.05.2012 qua her termination of service during September, 2004 by respondent suffers from the

vice of delay and laches as alleged? If so, its effect?

…OPP.

Whether termination of services of the petitioner by the respondent during September,

2004 is/was illegal and unjustified as alleged?

… OPP.

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

entitled to?

…OPP.

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 : Yes

Issue No.2 : Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief.

: Petition is partly allowed awarding compensation Rs.1,25,000/- per operative

part of award.

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REASONS FOR FINDINGS

ISSUES NO. 1 TO 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 year 1993 continuously worked till September, 2004 with the

respondent 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 1993 to September, 2004. 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,

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 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 2012 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, 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

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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 167 days in the year 1993, 178 days in 1994, 111 days in 1995, 154 days in 1996, 134

days in 1997, 132 days in 1998, 117 days in 1999, 124 days in 2000, 112 days in 2001, 129

days in 2002, 119 days in 2003 and 94 days in 2004 and thus a total of her service in 1993 to

2004 in 12 years she had worked for 1571 days in her entire service period. Be it noticed that

except the years, 1995 to 2004 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 2004 the petitioner had merely worked for 94 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. counsel for petitioner has contended with vehemence that large number of

workers who were junior to petitioner had been appointed 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. RW1/C is the year-wise mandays of

daily waged workers who were junior to the petitioner and had joined in the year 1994 or

thereafter. All of these co-workers shown in Ex. RW1/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.10 of the affidavit were retained whereas petitioner was senior from these co-workers

having joined service in 1993 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

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reflected in Ex. RW1/C1 to Ex RW1/C6. 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/C1 to Ex. RW1/C6 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. counsel for petitioner has contended that after petitioner’s termination in

September, 2004, 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 petitieonr 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

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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 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

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