jkti=] fgekpy izns'k
fgekpy izns'k jkT; 'kklu }kjk izdkf'kr
lkseokj] 08 vxLr] 2016@17 Jko.k] 1938
fgekpy izns'k ljdkj
yksd fuekZ.k foHkkx
vf/klwpuk
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la[;k%ih-ch-MCy;w¼ch½,Q¼5½39@2015-&&;r% fgekpy izns”k ds jkT;iky dks ;g izrhr gksrk gS fd
fgekpy izns”k ljdkj dks ljdkjh O;; ij lkoZtfud iz;kstu gsrq uker xkao “kjkasFkk] mi&rglhy
fVDdj] ftyk f”keyk] fgekpy izns”k esa e<+kjyh fVDdj lM+d ds fuekZ.k gsrq Hkwfe vftZr visf{kr gS]
92&jkti=@2016&08&08&2016
¼3317½
3318
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
vr,o ,rn~ }kjk ;g vf/klwfpr fd;k tkrk gS fd mDr ifj{ks= esa tSlk fd fuEu fooj.kh esa fufnZ’V fd;k
x;k gS] mijksDr iz;kstu ds fy, Hkwfe dk vtZu visf{kr gSA
2- ;g vf/klwpuk ,sls lHkh O;fDr;ksa dks] tks blls lEcfU/kr gks ldrs gSa] dh tkudkjh ds fy,
Hkwfe vtZu] iquokZl vkSj iquZO;ZoLFkkiu esa mfpr izfrdj vkSj ikjnf”kZrk vf/kdkj vf/kfu;e] 2013 ¼2013
dk 30½ dh /kkjk&11 ds micU/kksa ds vUrxZr tkjh dh tkrh gSA
3- iwoksZDr /kkjk }kjk iznRr “kfDr;ksa dk iz;ksx djrs gq, jkT;iky fgekpy izns”k bl le; bl
midze esa dk;Zjr lHkh vf/kdkfj;ksa muds deZpkfj;ksa vkSj Jfedksa dks bykds dh fdlh Hkh Hkwfe esa izos”k
djus vkSj losZ{k.k djus rFkk ml /kkjk }kjk visf{kr vFkok vuqer% vU; lHkh dk;ksZ dks djus ds fy,
lg’kZ izkf/kdkj nsrs gSaA
4- dksbZ Hkh fgrc) O;fDr ftls mDr ifj{ks+= esa dfFkr Hkwfe ds vtZu ij dksbZ vkifRr gks rks
og bl vf/klwpuk ds izdkf”kr gksus ds 30 fnukas dh vof/k ds Hkhrj Hkw&vtZu lekgrkZ] yksd fuekZ.k foHkkx
¼f”k0{ks0½] foUVj fQYM] f”keyk ds le{k fyf[kr :Ik ls vkifRr nk;j dj ldrk gSa !
fooj.kh
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la[;k%ih-ch-MCy;w¼ch½,Q ¼5½53@2016-&&;r% fgekpy izns”k ds jkT;iky dks ;g izrhr gksrk gS
fd fgekpy izns”k ljdkj dks ljdkjh O;; ij lkoZtfud iz;kstu gsrq uker xkao <ko.k@237] rglhy
cYg] ftyk e.Mh esa L;kag <ko.k H;kjVk lMd ds fuekZ.k gsrq Hkwfe vftZr djuh visf{kr gS] vr,o ,rn~
}kjk ;g vf/klwfpr fd;k tkrk gS fd mDr ifj{ks= esa tSlk fd fuEu fooj.kh esa fufnZ’V fd;k x;k gS]
mijksDr iz;kstu ds fy, Hkwfe dk vtZu visf{kr gSA
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Hkwfe vtZu] iquokZl vkSj iquZO;ZoLFkkiu esa mfpr izfrdj vkSj ikjnf”kZrk vf/kdkj vf/kfu;e] 2013 ¼2013
dk 30½ dh /kkjk&11 ds micU/kksa ds vUrxZr tkjh dh tkrh gSA
3- iwoksZDr /kkjk }kjk iznRr “kfDr;ksa dk iz;ksx djrs gq, jkT;iky fgekpy izns”k bl le; bl
miØe esa dk;Zjr lHkh vf/kdkfj;ksa muds deZpkfj;ksa vkSj Jfedksa dks bykds dh fdlh Hkh Hkwfe esa izos”k
3319
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
djus vkSj losZ{k.k djus rFkk ml /kkjk }kjk visf{kr vFkok vuqer% vU; lHkh dk;ksZ dks djus ds fy,
lg’kZ izkf/kdkj nsrs gSaA
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bl vf/klwpuk ds izdkf”kr gksus ds lkB ¼60½ fnu dh vof/k ds Hkhrj Hkw&vtZu lekgrkZ] yksd fuekZ.k
foHkkx] e.Mh] fgekpy izns”k ds le{k fyf[kr vkifÙknk;j dj ldrk gSa !
fooj.kh
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&&&&&&&&
PUBLIC WORKS DEPARTMENT
NOTIFICATION
Shimla-171002, the 28th July, 2016
No. PBW(B)F(7)3/2009-I.—In continuation to this department notification of even number
dated 18th May, 2016, the Governor, Himachal Pradesh is pleased to declare the following
mentioned roads as Major District Roads (MDRs):—
Sr.
No.
Name of road
District
Length
(Kms)
MDR No.
61
Chamba Khajjiar Road
Chamba
19
70
62
Chamba Sahoo Road
Chamba
21
71
Accordingly the total length of Major District Roads in the State will be 2437.730 kms.
By order,
Sd/-
Addl. Chief Secretary.
3320
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LABOUR AND EMPLOYMENT DEPARTMENT
NOTIFICATION
Shimla, the 28th 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
1.
25/2013
Sh. Hem Raj V/s The Geep Battries (I) Ltd. Juddi Kalan, District
Solan H.P.
2-A
2.
27/2013
Sh. Sudesh Kumar V/s -do-
2-A
3.
19/2014
Ms. Uma Devi V/s The Executive Engineer, IPH Division Pooh,
District Kinnaur, H.P.
10
4.
63/2013
Ms. Sanam Devi V/S -do-
10
5.
05/2013
Ms. Rakesh Kumari V/S -do-
10
6.
72/2013
Norjang Yum V/S -do-
10
7.
33/2009
Sh. Munish Kumar V/S M/S Himachal Futuristic Communication
Ltd. Chambaghat, Solan & Anr.
10
8.
32/2009
Sh. Manjeet Singh V/s -do-
10
9.
92/2014
Sh. Balbir Singh V/S The Exectutive Engineer, HPPWD,
Kumarsain, District Shimla, H.P. & Ors.
2-A
10.
06/2012
Sh. Vinod Kumar V/S M/S Numeric Power System Ltd.
Parwanoo District Solan H.P.
2-A
11.
74/2014
Workers Union V/S M/S Mahale Filter System Ltd.
10
12.
89/2014
Sh. Lal Ji V/s Bhojia Dental College & Hospital, Baddi District
Solan, H.P.
2-A
13.
90/2014
Sh. Sarwan Kumar V/s -do-
2-A
14.
45/2015
Sh. Ravinder Kumar V/s M/S Tapan Multiventure Shoghi,
Shimla.
10
By order,
Sd/-
Pr. Secretary ( Lab. & Emp.).
3321
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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P) CAMP AT NALAGARH
App. No.
: 25 of 2013
Instituted on.
: 21.5.2013
Decided on
: 24.6.2016
Hem Raj C/o Shri A.K Sharma, R/o Sai Road, Baddi, HP
...Petitioner.
Vs.
The Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi Kalan, District Solan, HP.
..Respondent.
Petition under section 2-A of the Industrial Disputes Act, 1947.
For petitioner
:
Shri A.K Sharma, AR.
For respondent
:
Shri Rajeev Sharma, Advocate.
ORDER/AWARD
In nutshell the case of the petitioner is that he was employed as an operator on 15.2.2006 by
the respondent and was drawing last wages of ` 11,800/- per month. It is further stated that the
petitioner had completed more than 240 days continuously before this termination and that his
services were terminated on 23.10.2009 without complying with the provisions of section 25-F of
the Industrial Disputes Act, 1947 (hereinafter referred to as Act) as neither any notice was served
upon him nor he was paid compensation. It is also stated that the petitioner had served a demand
notice dated 24.10.2009 to the respondent and copy of which was sent to the respondent but the
conciliation officer sent his failure report on 3.9.2010. Against this back-drop a prayer has been
made for his reinstatement along-with all consequential service benefits including back-wages.
2. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that the petitioner has not come to this
Court with clean hands and the petitioner is gainfully employed. On merits, it has been admitted
that the petitioner joined the respondent as an operator w.e.f. 15.2.2006 but it is denied that the
petitioner was drawing ` 11,800/- per month at the time of his abandoning the job. It is admitted
that the petitioner had completed 240 days in one year. It is submitted that when a senior officer of
the company visited the factory, he found that three persons including the petitioner were sitting
idle during duty hours and thereafter a show cause notice was issued to the petitioner but he instead
of filing the reply to show cause notice, abandoned the job. The services of the petitioner had never
been terminated by the respondent, who himself had abandoned his job. The respondent prayed for
the dismissal of the claim petition.
3.
Rejoinder not filed. Pleadings of the parties gave rise to the following issues which
were struck on 17.1.2014.
1. Whether the termination of the petitioner w.e.f. 23.10.2009 is illegal and unjustified as
alleged?
...OPP.
2.
If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled
to?
... OPP.
3322
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3. Whether this petition is not maintainable as alleged?
...OPR.
4. Relief.
4.
Besides having heard the learned counsel for the parties, I have also gone through the
record of the case carefully.
5.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled for reinstatement in service with seniority and
continuity but without back-wages.
Issue no.3
No.
Relief.
Petition allowed per operative part of order/award.
Reasons for findings
Issues no. 1.
6. The AR for the petitioner contended that the services of the petitioner had been
terminated by the respondent illegally without serving him any notice as required under section 25-
F of the Act especially when he had completed more than 240 days in each calendar year. He
further contended that before terminating his services no enquiry had been conducted against him.
7. On the other hand, Ld. counsel for the respondent contended that the services of the
petitioner had never been terminated by the respondent, who himself had abandoned his job
without any intimation to the respondent.
8. The petitioner stepped into the witness box as PW-1 and tendered in evidence his
affidavit Ex. PA, wherein he reiterated almost all the averments as stated in the petition. In
crossexamination, he admitted that he has not annexed any document with his petition which could
go to show that he had worked with the respondent and that he was being paid ` 11800/- as salary
per month. He admitted that a show cause notice was issued to him and further volunteered that
reply to show cause notice was given to the respondent. He denied that he had left the job at his
own without any intimation to the respondent company. He further denied that he is gainfully
employed.
9. On the contrary, the respondent examined one Shri Masood Ali Baig, as RW- 1, who
has stated that the petitioner was working in their factory and during the visit of M.D of the
company, it was found that the petitioner and two other workers were sitting idle and gossiping
with each other and the work was stopped and for this reason on the directions of M.D, a show
cause notice was issued to them by the HR Department but the petitioner had not filed any reply to
the show cause notice and became absent from his place of work and abandoned the job. In cross-
examination, he admitted that as per the standing orders of the company, the charges leveled
against the petitioner fall under the “misconduct” and no enquiry was conducted against him
because he failed to file any reply to show cause notice and also failed to turn up after the issuance
of the show cause notice.
3323
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
10. RW-2 Shri Virender Kumar Ojha, Manager HR has stated that the petitioner along-
with Sudesh Kumar and Ram Rattan were sitting idle and gossiping during duty hours and they
were apprehended by the senior officer i.e M.D of the Company upon which a show cause notice
was issued to the petitioner and other two workers but they had not filed any reply and thereafter
the petitioner stopped reporting for duties. The management had not terminated the services of the
petitioner, who himself had abandoned his job. In cross-examination, he denied that abandonment
amounts to misconduct as per the model standing orders and that the services of the petitioner were
terminated by the management illegally.
11. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof it has become clear that the petitioner was appointed as an operator on 15.2.2006 by the
respondent and he worked as such till 23.10.2009. The only plea taken by the respondent is to this
effect that the services of the petitioner had never been terminated but he himself had abandoned
his job without any intimation However, respondent has failed to prove on record by leading cogent
and satisfactory evidence to show that the petitioner had abandoned the job on his own. By mere
alleging that the petitioner had abandoned the job on his own is not sufficient to prove the stand of
the respondent especially when there is nothing on record which could show that the respondent
has ever sent any letter or notice to the petitioner to resume his duties. In State of HP & Others Vs.
Bhatag Ram & Another reported in Latest HLJ 2007 (HP) 903, our own Hon’ble High Court
after relying upon the decision of the Hon’ble Supreme Court in G.T Lad and others V.
Chemicals and Fibers India Ltd., AIR 1979 SC 582 has held that the finding of abandonment is a
fact and the same has to be substantiated by leading evidence. In the present case also, as stated
above, the respondent has failed to prove the plea of abandonment by leading cogent and
satisfactory evidence on record as such it cannot be said that the petitioner has abandoned the job
on his own.
12. Now, it has to be seen as to whether the termination of the services of the petitioner is
illegal and unjustified. Admittedly, a show cause notice has been issued to the petitioner but no
enquiry was conducted against him in any manner. It is settled legal proposition that a workman,
against whom misconduct is alleged, cannot be dismissed or discharged unless a proper domestic
enquiry is held against him in respect of the alleged misconduct. Even, if there is proved
misconduct against the workman, he cannot be dis-charged or dismissed from service unless he has
been afforded reasonable opportunity of being heard before initiating any action against him by the
employer/respondent. It has been admitted by the respondent in the reply that the petitioner had
completed 240 days in one year. Since, the petitioner had completed 240 days in twelve calendar
months preceding his termination, a reasonable opportunity of being heard should have been
afforded to him and proper enquiry should have been held before terminating his services. In D. K
Yadav Vs. M/s J.M A Industries Ltd. as reported in 1993-1 Supreme Court Service Law
Judgments -221, the Hon’ble Apex Court has held as under:
“Reasonable opportunity be given to the employee concerned to put forth his case and
proper enquiry be held before terminating his service.”
In a recent judgment of our Hon’ble High Court in ILR-XLV (VI) 938 titled as
Gurcharan Singh Deceased through his LR’s Vs. State of HP and ors. the Hon’ble High Court
has held that termination could not have been ordered without conducting any enquiry as the
workman had completed 240 days and was therefore entitled to the enquiry. The relevant portion of
the aforesaid judgment reads as under:
“8. The moot question is whether termination can be ordered without conducting any
inquiry? The answer is in the negative for the following reasons:
9.
……………………………………..
3324
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
10. While going through the impugned award and the writ petition, one comes to an
inescapable conclusion that the termination of deceased Gurcharan Singh was made
without following the mandate of law.
11. ……………………………………..
12. …………………………………….
13. In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar
year, as discussed and held by the Labour Court, after scanning the evidence, the
inquiry was required, not to speak of only issuance of the notice.
In the instant case, admittedly, the petitioner had worked with the respondent w.e.f.
15.2.2006 to 23.10.2009 continuously meaning thereby the petitioner had completed 240 working
days in twelve calendar months preceding his termination. However, the petitioner was never asked
to answer any charges as no chargesheet was issued to him and no enquiry was held before
terminating his services, on the basis of the alleged misconduct. Hence, the termination of the
services of the petitioner without conducting any enquiry and without affording reasonable
opportunity of being heard to the petitioner is in utter violation of the principles of natural justice.
Therefore, before terminating the services of the petitioner, it was incumbent upon the respondent
to have complied with the provisions of section 25-F of the Act which lay down certain conditions
precedent to the retrenchment of a workman (workmen) and requires the employer to comply with
those conditions as per clauses (a) to (c) which are mandatory in nature. In 2010 (5) SCC 497
titled as Anoop Sharma Vs. Executive Engineer, Public Health division no.1, Panipat
(Haryana), the Hon’ble Supreme Court has held that the termination of the services of an
employee by way of retrenchment without complying with the provisions of section 25-F of the Act
is a nullity. The relevant extract of aforesaid judgment is reproduced as under:
“16. An analysis of the above reproduced provisions shows that no workman employed in
any industry who has been in continuous service for not less than one year under an
employer can be retrenched by that employer until the conditions enumerated in Clauses (a)
and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is
required to give to the workman one month’s notice in writing indicating the reasons for
retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the
employer to pay to the workman at the time of retrenchment, compensation equivalent to
fifteen days’ average pay for every completed year of continuous service or any part thereof
in excess of six months.
17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory
and
non-compliance
thereof
renders
the
retrenchment
of
an
employee
nullity……………..”
13. Therefore, in view of my aforesaid discussion, as it is clear that the petitioner had
worked for more than 240 days in twelve calendar months preceding his termination, the
respondent was under the legal obligation to comply with the provisions of the section 25-F of the
Industrial Disputes Act before terminating his services. But, no such compliance was made by the
respondent, hence, there is violation of section 25-F of the Act, on the part of respondent. As a
result, the termination of petitioner w.e.f. 23.10.2009 is not sustainable in the eyes of law and is
hereby set aside.
14. Thus, having regard to entire evidence on record and in view of above cited rulings and
my foregoing observations, I have no hesitation in holding that the termination of the services of
the petitioner w.e.f. 23.10.2009, by the respondent without complying with the provisions of the
3325
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
Act, is illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and
against the respondent.
Issue no.2.
15. Since, I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
16. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
17. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
18. In the present case, the petitioner has failed to discharge his burden by placing any
material on record except for his bald statement that he was not gainfully employed after his
termination/disengagement. Therefore, in view of the entire evidence, on record, coupled with the
rulings (supra), I have no hesitation in holding that the petitioner is not entitled to any back-wages.
Accordingly, issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No. 3.
19. In support of this issue, the learned counsel for the respondent contended that since the
petitioner has filed the present application directly before this Court, for this reason, in the absence
of reference, the same is not maintainable. However, when regard is given to the entire record, it is
an admitted fact that after the termination of the services petitioner, he raised an industrial dispute
which fact is also clear from the reply filed by the respondent wherein the respondent has admitted
that a demand notice was served upon them. Since, the petitioner has served a demand notice dated
24.10.2009, it cannot be said that the present petition is not maintainable. Accordingly, this issue is
decided in favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in
3326
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
service forthwith with seniority and continuity. However, the petitioner is not entitled to back
wages. Let a copy of this order/award be sent to the appropriate government for publication in
official gazette. File, after completion, be consigned to records.
Announced in the open Court today on this 24th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla
Camp at Nalagarh.
___________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P) CAMP AT NALAGARH
App. No.
: 27 of 2013
Instituted on.
: 21.5.2013
Decided on
: 24.6.2016
Sudesh Kumar C/o Shri A.K Sharma, R/o Sai Road, Baddi, HP.
...Petitioner.
Vs.
The Geep Battries (1) Ltd., Plot no. 66 and 67 HPSIDC, Juddi Kalan, District Solan, HP
.
...Respondent
Petition under section 2-A of the Industrial Disputes Act, 1947.
For petitioner
:
Shri A.K Sharma, AR.
For respondent
:
Shri Rajeev Sharma, Advocate.
ORDER/AWARD
In nutshell the case of the petitioner is that he was employed as an operator on 24.12.2007
by the respondent and was drawing last wages of ` 8000/- per month. It is further stated that the
petitioner had completed more than 240 days continuously before this termination and that his
services were terminated on 23.10.2009 without complying with the provisions of section 25-F of
the Industrial Disputes Act, 1947 (hereinafter referred to as Act) as neither any notice was served
upon him nor he was paid compensation. It is also stated that the petitioner had served a demand
notice dated 24.10.2009 to the respondent and copy of which was sent to the respondent but the
conciliation officer sent his failure report on 3.9.2010. Against this back-drop a prayer has been
made for his reinstatement along-with all consequential service benefits including back-wages.
2.
By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, that the petitioner has not come to this
Court with clean hands and the petitioner is gainfully employed. On merits, it has been admitted
3327
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
that the petitioner joined the respondent as an operator w.e.f. 24.12.2007 but it is denied that the
petitioner was drawing ` 8000/- per month at the time of his abandoning the job. It is admitted that
the petitioner had completed 240 days in one year. It is submitted that when a senior officer of the
company visited the factory, he found that three persons including the petitioner were sitting idle
during duty hours and thereafter a show cause notice was issued to the petitioner but he instead of
filing the reply to show cause notice, abandoned the job. The services of the petitioner had never
been terminated by the respondent, who himself had abandoned his job. The respondent prayed for
the dismissal of the claim petition.
3. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which
were struck on 17.1.2014.
1.
Whether the termination of the petitioner w.e.f. 23.10.2009 is illegal and unjustified as
alleged?
...OPP
2. If issue no.1 is proved in affirmative to what service benefits the petitioner is entitled
to?
...OPP
3.
Whether this petition is not maintainable as alleged?
...OPR
4. Relief.
4. Besides having heard the learned counsel for the parties, I have also gone through the
record of the case carefully.
5. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no. 1
Yes.
Issue no.2
Entitled for reinstatement in service with seniority
andcontinuity but without back-wages.
Issue no.3
No.
Relief.
Petition allowed per operative part of order/award.
Reasons for findings
Issues no.1.
6.
The AR for the petitioner contended that the services of the petitioner had been
terminated by the respondent illegally without serving him any notice as required under section 25-
F of the Act especially when he had completed more than 240 days in each calendar year. He
further contended that before terminating his services no enquiry had been conducted against him.
7. On the other hand, Ld. counsel for the respondent contended that the services of the
petitioner had never been terminated by the respondent, who himself had abandoned his job
without any intimation to the respondent.
8. The petitioner stepped into the witness box as PW-1 and tendered in evidence his
affidavit Ex. PA, wherein he reiterated almost all the averments as stated in the petition. In
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crossexamination, he admitted that he has not annexed any document with his petition which could
go to show that he had worked with the respondent and that he was being paid ` 8000/- as salary
per month. He admitted that a show cause notice was issued to him and further volunteered that
reply to show cause notice was given to the respondent. He denied that he had left the job at his
own without any intimation to the respondent company. He further denied that he is gainfully
employed.
9.
On the contrary, the respondent examined one Shri Masood Ali Baig, as RW- 1, who
has stated that the petitioner was working in their factory and during the visit of M.D of the
company, it was found that the petitioner and two other workers were sitting idle and gossiping
with each other and the work was stopped and for this reason on the directions of M.D, a show
cause notice was issued to them by the HR Department but the petitioner had not filed any reply to
the show cause notice and became absent from his place of work and abandoned the job. In cross-
examination, he admitted that as per the standing orders of the company, the charges leveled
against the petitioner fall under the “misconduct” and no enquiry was conducted against him
because he failed to file any reply to show cause notice and also failed to turn up after the issuance
of the show cause notice.
10. RW-2 Shri Virender Kumar Ojha, Manager HR has stated that the petitioner along-
with Sudesh Kumar and Ram Rattan were sitting idle and gossiping during duty hours and they
were apprehended by the senior officer i.e M.D of the Company upon which a show cause notice
was issued to the petitioner and other two workers but they had not filed any reply and thereafter
the petitioner stopped reporting for duties. The management had not terminated the services of the
petitioner, who himself had abandoned his job. In cross-examination, he denied that abandonment
amounts to misconduct as per the model standing orders and that the services of the petitioner were
terminated by the management illegally.
11. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof it has become clear that the petitioner was appointed as an operator on 24.12.2007 by the
respondent and he worked as such till 23.10.2009. The only plea taken by the respondent is to this
effect that the services of the petitioner had never been terminated but he himself had abandoned
his job without any intimation However, respondent has failed to prove on record by leading cogent
and satisfactory evidence to show that the petitioner had abandoned the job on his own. By mere
alleging that the petitioner had abandoned the job on his own is not sufficient to prove the stand of
the respondent especially when there is nothing on record which could show that the respondent
has ever sent any letter or notice to the petitioner to resume his duties. In State of HP & Others Vs.
Bhatag Ram & Another reported in Latest HLJ 2007 (HP) 903, our own Hon’ble High Court
after relying upon the decision of the Hon’ble Supreme Court in G.T Lad and others V.
Chemicals and Fibers India Ltd., AIR 1979 SC 582 has held that the finding of abandonment is a
fact and the same has to be substantiated by leading evidence. In the present case also, as stated
above, the respondent has failed to prove the plea of abandonment by leading cogent and
satisfactory evidence on record as such it cannot be said that the petitioner has abandoned the job
on his own.
12. Now, it has to be seen as to whether the termination of the services of the petitioner is
illegal and unjustified. Admittedly, a show cause notice has been issued to the petitioner but no
enquiry was conducted against him in any manner. It is settled legal proposition that a workman,
against whom misconduct is alleged, cannot be dismissed or discharged unless a proper domestic
enquiry is held against him in respect of the alleged misconduct. Even, if there is proved
misconduct against the workman, he cannot be dis-charged or dismissed from service unless he has
been afforded reasonable opportunity of being heard before initiating any action against him by the
employer/respondent. It has been admitted by the respondent in the reply that the petitioner had
completed 240 days in one year. Since, the petitioner had completed 240 days in twelve calendar
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months preceding his termination, a reasonable opportunity of being heard should have been
afforded to him and proper enquiry should have been held before terminating his services. In D. K
Yadav Vs. M/s J.M A Industries Ltd. as reported in 1993-1 Supreme Court Service Law
Judgments -221, the Hon’ble Apex Court has held as under:
“Reasonable opportunity be given to the employee concerned to put forth his case and
proper enquiry be held before terminating his service.”
In a recent judgment of our Hon’ble High Court in ILR-XLV (VI) 938 titled as
Gurcharan Singh Deceased through his LR’s Vs. State of HP and ors. the Hon’ble High Court
has held that termination could not have been ordered without conducting any enquiry as the
workman had completed 240 days and was therefore entitled to the enquiry. The relevant portion of
the aforesaid judgment reads as under:
“8. The moot question is whether termination can be ordered without conducting any
inquiry? The answer is in the negative for the following reasons:
9……………………………………..
10. While going through the impugned award and the writ petition, one comes to an
inescapable conclusion that the termination of deceased Gurcharan Singh was made
without following the mandate of law.
11. ……………………………………..
12. …………………………………….
13. In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar
year, as discussed and held by the Labour Court, after scanning the evidence, the
inquiry was required, not to speak of only issuance of the notice.
In the instant case, admittedly, the petitioner had worked with the respondent w.e.f.
24.12.2007 to 23.10.2009 continuously meaning thereby the petitioner had completed 240 working
days in twelve calendar months preceding his termination. However, the petitioner was never asked
to answer any charges as no chargesheet was issued to him and no enquiry was held before
terminating his services, on the basis of the alleged misconduct. Hence, the termination of the
services of the petitioner without conducting any enquiry and without affording reasonable
opportunity of being heard to the petitioner is in utter violation of the principles of natural justice.
Therefore, before terminating the services of the petitioner, it was incumbent upon the respondent
to have complied with the provisions of section 25-F of the Act which lay down certain conditions
precedent to the retrenchment of a workman (workmen) and requires the employer to comply with
those conditions as per clauses (a) to (c) which are mandatory in nature. In 2010 (5) SCC 497
titled as Anoop Sharma Vs. Executive Engineer, Public Health division no.1, Panipat
(Haryana), the Hon’ble Supreme Court has held that the termination of the services of an
employee by way of retrenchment without complying with the provisions of section 25-F of the Act
is a nullity. The relevant extract of aforesaid judgment is reproduced as under:
“16. An analysis of the above reproduced provisions shows that no workman employed in
any industry who has been in continuous service for not less than one year under an
employer can be retrenched by that employer until the conditions enumerated in Clauses (a)
and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is
required to give to the workman one month’s notice in writing indicating the reasons for
3330
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retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the
employer to pay to the workman at the time of retrenchment, compensation equivalent to
fifteen days’ average pay for every completed year of continuous service or any part thereof
in excess of six months.
17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory
and
non-compliance
thereof
renders
the
retrenchment
of
an
employee
nullity……………..”
13. Therefore, in view of my aforesaid discussion, as it is clear that the petitioner had
worked for more than 240 days in twelve calendar months preceding his termination, the
respondent was under the legal obligation to comply with the provisions of the section 25-F of the
Industrial Disputes Act before terminating his services. But, no such compliance was made by the
respondent, hence, there is violation of section 25-F of the Act, on the part of respondent. As a
result, the termination of petitioner w.e.f. 23.10.2009 is not sustainable in the eyes of law and is
hereby set aside.
14. Thus, having regard to entire evidence on record and in view of above cited rulings
and my foregoing observations, I have no hesitation in holding that the termination of the services
of the petitioner w.e.f. 23.10.2009, by the respondent without complying with the provisions of the
Act, is illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and
against the respondent.
Issue no.2.
15. Since, I have held under issue no.1 above that the termination of services of the
petitioner by the respondent without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity.
16. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
17. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that:
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
3331
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18. In the present case, the petitioner has failed to discharge his burden by placing any
material on record except for his bald statement that he was not gainfully employed after his
termination/disengagement. Therefore, in view of the entire evidence, on record, coupled with the
rulings (supra), I have no hesitation in holding that the petitioner is not entitled to any back-wages.
Accordingly, issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No.3.
19. In support of this issue, the learned counsel for the respondent contended that since the
petitioner has filed the present application directly before this Court, for this reason, in the absence
of reference, the same is not maintainable. However, when regard is given to the entire record, it is
an admitted fact that after the termination of the services petitioner, he raised an industrial dispute
which fact is also clear from the reply filed by the respondent wherein the respondent has admitted
that a demand notice was served upon them. Since, the petitioner has served a demand notice dated
24.10.2009, it cannot be said that the present petition is not maintainable. Accordingly, this issue is
decided in favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in
service forthwith with seniority and continuity. However, the petitioner is not entitled to back
wages. Let a copy of this order/award be sent to the appropriate government for publication in
official gazette. File, after completion, be consigned to records.
Announced in the open Court today on this 24th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla
Camp at Nalagarh.
_____________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref.
:
19 of 2014.
Instituted on.
:
13.2.2014.
Decided on
:
29.6.2016.
Uma Devi W/o Shri Gur Dass R/o VPO Jangi, Tehsil Moorang, District Kinnaur, HP.
. .Petitioner.
Vs.
Executive Engineer, IPH Division Pooh, District Kinnaur, HP.
. .Respondent.
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Reference under Section 10 of the Industrial Disputes Act, 1947
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Shri H.N Kashyap, ADA.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Smt. Uma Devi W/o Shri Gur Dass R/o Village
& P.O Jangi, Tehsil Moorang, District Kinnaur, HP from time to time by the
Executive Engineer, I&PH Division Pooh, District Kinnaur HP w.e.f. 2002 to 2010
without complying with the provisions of Industrial Disputes Act, 1947 is legal and
justified? If not, what amount of back-wages, seniority, past servicen benefits and
compensation the above worker is entitled to from the above employer?”
2.
Briefly, the case of the petitioner is that w.e.f. 1.4.1986, she had been employed as
beldar on daily wages basis by the respondent division which was subsequently bifurcated and a
new division was constituted at Pooh and the services of the petitioner were transferred to the new
division and as such presently the petitioner is working under respondent division. It is further
stated that the petitioner had completed 180 working days (as required in a Tribal area) in a
calendar year for so many years but the respondent had given breaks in her service with malafide
intention. It is also stated that juniors/contemporary workmen to the petitioner namely Manohar
Lal, Yumpal Singh and Ram Bhagat were allowed to continue in their service without any breaks
and even their services have also been regularized whereas the services of the petitioner had not
been regularized by the respondent and as such the action of the respondent is arbitrary, illegal and
contrary to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act).
Against his back-drop a prayer has been made that the respondent be directed to regularize the
services of the petitioner along-with seniority and continuity including back-wages.
3.
By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability and that being the heavy snow bound
area, there was no working season for labourer during the months of October to March/April. On
merits, it has been asserted that the petitioner had been engaged on daily wage/seasonal basis in
September, 1988 under respondent division at Reckongpeo and on bifurcation of division to Pooh,
the muster rolls/vouchers were also transferred to IPH Division Pooh and as such the petitioner was
engaged on seasonal basis on Flow Irrigation Scheme, Jangi, Phase-1 by respondent department. It
is denied that the petitioner had completed 180 days in each calendar year. It is asserted that the
work in Akpa sub- division is a seasonal one and labourers were deployed for one season to another
as the Akpa sub division is a tribal and snow bound area, hence, due to snow there is no working
season during the months of October to March/April and depends up to the conditions of weather
and as such the workers are being engaged against development work founded during working
season. It is denied that the services of the petitioner were terminated from time to time. It is
asserted that the services of S/Shri Manohar Lal, Yumpal Singh and Ram Bhagat, who are
juniors/contemporary workmen to the petitioner have been regularized as they have completed 180
working days in each calendar year without any break and since the petitioner had not completed
180 working days in each calendar year, her services were not regularized. The respondent 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 13.8.2014.
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1.
Whether the termination of the services of the petitioner from time to time w.e.f. 2002
to 2010 is illegal and unjustified as alleged?
...OPP
2.
If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to?
...OPP
3.
Whether the present reference is not maintainable as alleged in preliminary objection?`
...OPP
4. Relief.
5. Besides having heard the learned counsels for the parties, I have also gone through the
record of the case carefully.
6.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to seniority and continuity.
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent per operative part of award.
Reasons for findings.
Issues no.1.
7.
To prove her case, the petitioner stepped into the witness box as PW-1 to depose that
w.e.f. 1st April, 1986, she was appointed as beldar on daily wages in IPH Division Reckongpeo but
the above said division was bifurcated and new division was created and her service record was
transferred to IPH division Pooh and she was employed with the respondent on daily wages since
her appointment. She had completed 180 days in each calendar year and the work with the
respondent department was continuous in nature. Some of her juniors namely Manohar Lal, Bhoom
Pal Singh, Ram Bhagat and Bhumi Dev were regularized by the department and as such the action
of the respondent is arbitrary, illegal and against the provisions of I.D Act. In cross-examination,
she admitted that District Kinnaur is snow bound area for 3-4 months and during the period of
snow, there is no work and that the department used to distribute the work among the workers on
uniform basis so that everyone gets the opportunity to work. She denied that she had completed 180
days in eight years only but admitted that she used to be engaged on muster roll basis only. She
denied that she used to leave the job at her own and that Manohar Lal, Bhoom Pal Singh, Ram
Bhagat and Bhumi Dev were not juniors to her. She admitted that the department used to call the
workers whenever there is availability of work
8. On the other hand, the respondent examined one Shri Dawa Singh, 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 authority letter Ex. RW-1/B and
mandays chart of petitioner Ex. RW-1/C. In cross-examination, he admitted that Mohan Lal and
Bhum Pal Singh were juniors to the petitioner and that breaks were given to the petitioner and she
was not allowed to complete 180 days in a year.
3334
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9. 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.
10. After the closer scrutiny of the record, it has become clear that the petitionerm was
initially engaged in the year 1988 and it is also the admitted case of the respondent that she is being
engaged regularly in every working season. It is not in dispute that the mandatory working days of
240 days in a calendar year have been reduced to 180 days in Tribal/Snow bound area by the State
Government. As per mandays chart Ex. RW-1/C, the petitioner had completed 226 days in the year
1994, 217 days in the year, 1995, 205 days in the year, 1996, 227 days in 1997, 265 days in 1998,
236 days in the year, 1999, 271 days in 2000 and 199 days in 2001. The aforesaid year wise
mandays chart of the petitioner also shows that she had worked for 175 days in the year, 2002, 179
days in 2003, 173.5 days in 2004, 165 days in 2005, 137.5 days in 2006, 175 days in 2007, 151
days in 2008, 152 days in 2009, 54 days in 2010, 159 days in 2011, 108 days in 2012 and 149 days
in 2013. The case of the petitioner is that the respondent had given breaks in her service with
malafide intention despite the fact that work with the respondent department was continuous in
nature. Though, the case of the respondent is that since the work being allotted to the workers
including the petitioner was on coterminus basis, therefore, the workers automatically stood
terminated/dis-engaged keeping in view the principles of co-terminus basis. However, in cross-
examination, RW-1 admitted that the breaks were given to the petitioner and she was not allowed
to complete 180 days in a year. Therefore, from the cross-examination of RW-1 it has become clear
that intentional breaks were given to the petitioner so that she could not complete 180 days in a
calendar year which action of the respondent by not allowing the petitioner to complete 180 days
w.e.f. 2002 to 2010 without complying with the provisions of the Act was not bonafide and was
only adopted to defeat the provisions of section 25-F of the Act and the same amounts to unfair
labour practice. Hence, I have no hesitation in holding that such termination/dis-engagement of the
petitioner from time to time w.e.f. 2002 to 2010 in contravention of the provisions of the Act is
illegal and unjustified.
11. The learned counsel for the petitioner further contended that though the petitioner was
not allowed to complete 180 days in every calendar year w.e.f. 2002 to 2010 whereas at the same
time her juniors namely Manohar Lal, Yum Pal Singh and Ram Bhagat have been allowed to
continue in their service without any breaks and even their services have been regularized. It has
been admitted by the respondent in the reply that juniors to the petitioner S/Shri Manohar Lal, Yum
Pal Singh and Ram Bhagat have been regularized by the department as they have completed 180
days in every calendar year and fulfilled the criteria for regularization.
12. Therefore, from the perusal of record, it has become clear that the petitioner was not
allowed to complete 180 days in every calendar year whereas at the same time her juniors were
allowed to complete 180 days in every calendar which is against the provisions of section 25-G of
the Act. Hence, it can safely be held that time to time termination of the services of the petitioner
by the respondent w.e.f. 2002 to 2010 without complying with the provisions of the Act is illegal
and unjustified. Accordingly, this issue is answered in favour of the petitioner and against the
respondent.
Issue no.2
13. Since, I have held under issue no.1 above that time to time termination of the services
of the petitioner by the respondent w.e.f. 2002 to 2010 without complying with the provisions of
the Act is illegal and unjustified, hence, the petitioner is held entitled for the seniority and
continuity without considering the period of breaks which were given to her intentionally from time
to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for regularization of the
petitioner shall be considered and processed in accordance with the policy of State Government.
3335
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14. Now, the question which arises for consideration, before this Court is as to whether
the petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
15. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I
have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly,
issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No.3.
16. In support of this issue, no evidence has been led by the respondent in order to show
that as to how this reference is not maintainable especially when the same has been made by the
appropriate government to this Court for adjudication. Hence, in view of no evidence on record, it
cannot be said that the present reference is not maintainable. Accordingly, this issue is decided in
favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is held entitled for the seniority
and continuity without considering the period of breaks which were given to her intentionally from
time to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for regularization of
the petitioner shall be considered and processed by the respondent in accordance with the policy of
State Government. However, the petitioner is not entitled to any back wages and as such the
reference is ordered to be answered in favour of the petitioner and against the respondent. Let a
copy of this award be sent to the appropriate government for publication in official gazette. File,
after completion, be consigned to records. Announced in the open Court today on this 29th Day of
June, 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.
:
63 of 2013.
Instituted on.
:
9.9.2013.
Decided on
:
29.6.2016.
Sanam Devi W/o Shri Puran Chand R/o VPO Jangi, Tehsil Moorang, District Kinnaur, HP.
...Petitioner.
3336
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Vs.
Executive Engineer, IPH Division Pooh, District Kinnaur, HP.
...Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947.
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Shri H.N Kashyap, ADA.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether time to time termination of the services of Smt. Sanam Devi W/o Shri Gian
Singh R/o Village & P.O Jangi, Tehsil Moorang, District Kinnaur, HP by the
Executive Engineer, I&PH Division Pooh, District Kinnaur HP w.e.f. 2002 to 2010
without complying with the provisions of Industrial Disputes Act, 1947 is legal and
justified? If not, what amount of back-wages, seniority, past service benefits and
compensation the above worker is entitled to from the above employer?”
2.
Briefly, the case of the petitioner is that w.e.f. 1.4.1993, she had been employed as
beldar on daily wages basis by the respondent division which was subsequently bifurcated and a
new division was constituted at Pooh and the services of the petitioner were transferred to the new
division and as such presently the petitioner is working under respondent division. It is further
stated that the petitioner had completed 180 working days (as required in a Tribal area) in a
calendar year for so many years but the respondent had given breaks in her service with malafide
intention. It is also stated that juniors/contemporary workmen to the petitioner namely Manohar
Lal, Yumpal Singh and Ram Bhagat were allowed to continue in their service without any breaks
and even their services have also been regularized whereas the services of the petitioner had not
been regularized by the respondent and as such the action of the respondent is arbitrary, illegal and
contrary to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act).
Against his back-drop a prayer has been made that the respondent be directed to regularize the
services of the petitioner along-with seniority and continuity including back-wages.
3.
By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability and that being the heavy snow bound
area, there was no working season for labourer during the months of October to March/April. On
merits, it has been asserted that the petitioner had been engaged on daily wage/seasonal basis in
April, 1991 under respondent division at Reckongpeo and on bifurcation of division to Pooh, the
muster rolls/vouchers were also transferred to IPH Division Pooh and as such the petitioner was
engaged on seasonal basis on Flow Irrigation Scheme, Jangi, Phase-1 by respondent department. It
is denied that the petitioner had completed 180 days in each calendar year. It is asserted that the
work in Akpa sub- division is a seasonal one and labourers were deployed for one season to another
as the Akpa sub division is a tribal and snow bound area, hence, due to snow there is no working
season during the months of October to March/April and depends up to the conditions of weather
and as such the workers are being engaged against development work founded during working
season. It is denied that the services of the petitioner were terminated from time to time. It is
asserted that the services of S/Shri Manohar Lal, Yumpal Singh and Ram Bhagat, who are
juniors/contemporary workmen to the petitioner have been regularized as they have completed 180
working days in each calendar year without any break and since the petitioner had not completed
180 working days in each calendar year, her services were not regularized. The respondent prayed
for the dismissal of the petition.
3337
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4.
Rejoinder not filed. Pleadings of the parties gave rise to the following issues which
were struck on 13.8.2014.
1. Whether the termination of the services of the petitioner from time to time w.e.f. 2002
to 2010 is illegal and unjustified as alleged?
...OPP.
2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to?
...OPP.
3. Whether the present reference is not maintainable as alleged in preliminary objection?
...OPR.
4. Relief.
5. Besides having heard the learned counsels for the parties, I have also gone through the
record of the case carefully.
6.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to seniority and continuity w.e.f. 2002 to 2010.
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent per operative part of award.
Reasons for findings
Issues no.1.
7. To prove her case, the petitioner stepped into the witness box as PW-1 to depose that
w.e.f. 1st April, 1993, she was appointed as beldar on daily wages in IPH Division Reckongpeo but
the above said division was bifurcated and new division was created and her service record was
transferred to IPH division Pooh and she was employed with the respondent on daily wages since
her appointment. She had completed 180 days in each calendar year and the work with the
respondent department was continuous in nature. Some of her juniors namely Manohar Lal, Bhoom
Pal Singh, Ram Bhagat and Bhumi Dev were regularized by the department and as such the action
of the respondent is arbitrary, illegal and against the provisions of I.D Act. In cross-examination,
she admitted that District Kinnaur is snow bound area for 3-4 months and during the period of
snow, there is no work and that the department used to distribute the work among the workers on
uniform basis so that everyone gets the opportunity to work. She denied that she had completed 180
days in six years only but admitted that she used to be engaged on muster roll basis only. She
denied that she used to leave the job at her own and that Manohar Lal, Bhoom Pal Singh, Ram
Bhagat and Bhumi Dev are not juniors to her. She admitted that the department used to call the
workers whenever there is availability of work.
8. On the other hand, the respondent examined one Shri Dawa Singh, 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 authority letter Ex. RW-1/B and
mandays chart of petitioner Ex. RW-1/C. In cross-examination, he admitted that Mohan Lal and
3338
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Bhum Pal Singh were juniors to the petitioner and that breaks were given to the petitioner and she
was not allowed to complete 180 days in a year.
9.
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.
10. After the closer scrutiny of the record, it has become clear that the petitioner was
initially engaged in the year 1991 and it is also the admitted case of the respondent that she is being
engaged regularly in every working season. It is not in dispute that the mandatory working days of
240 days in a calendar year have been reduced to 180 days in Tribal/Snow bound area by the State
Government. As per mandays chart Ex. RW-1/C, the petitioner had completed 190 days in the year
1997, 270 days in the year, 1998, 234 days in the year, 1999, 237 days in 2000, 199 days in 2001
and 181 days in the year, 2003. The aforesaid year wise mandays chart of the petitioner also shows
that she had worked for 174.5 days in the year, 2004, 165 days in 2005, 137.5 days in 2006, 175
days in 2007, 151 days in 2008, 152 days in 2009, 54 days in 2010, 159 days in 2011, 108 days in
2012 and 149 days in the year, 2013. The case of the petitioner is that the respondent had given
breaks in her service with malafide intention despite the fact that work with the respondent
department was continuous in nature. Though, the case of the respondent is that since the work
being allotted to the workers including the petitioner was on co-terminus basis, therefore, the
workers automatically stood terminated/dis-engaged keeping in view the principles of co-terminus
basis. However, in crossexamination, RW-1 admitted that the breaks were given to the petitioner
and she was not allowed to complete 180 days in a year. Therefore, from the cross-examination of
RW-1 it has become clear that intentional breaks were given to the petitioner so that she could not
complete 180 days in a calendar year which action of the respondent by not allowing the petitioner
to complete 180 days w.e.f. 2002 to 2010 without complying with the provisions of the Act was not
bonafide and was only adopted to defeat the provisions of section 25-F of the Act and the same
amounts to unfair labour practice. Hence, I have no hesitation in holding that such termination/dis-
engagement of the petitioner from time to time w.e.f. 2002 to 2010 in contravention of the
provisions of the Act is illegal and unjustified.
11. The learned counsel for the petitioner further contended that though the petitioner was
not allowed to complete 180 days in every calendar year w.e.f. 2002 to 2010 whereas at the same
time her juniors namely Manohar Lal, Yum Pal Singh and Ram Bhagat have been allowed to
continue in their service without any breaks and even their services have been regularized. It has
been admitted by the respondent in the reply that juniors to the petitioner S/Shri Manohar Lal, Yum
Pal Singh and Ram Bhagat have been regularized by the department as they have completed 180
days in every calendar year and fulfilled the criteria for regularization.
12. Therefore, from the perusal of record, it has become clear that the petitioner was not
allowed to complete 180 days in every calendar year whereas at the same time her juniors were
allowed to complete 180 days in every calendar which is against the provisions of section 25-G of
the Act. Hence, it can safely be held that time to time termination of the services of the petitioner
by the respondent w.e.f. 2002 to 2010 without complying with the provisions of the Act is illegal
and unjustified. Accordingly, this issue is answered in favour of the petitioner and against the
respondent.
Issue no. 2
13. Since, I have held under issue no.1 above that time to time termination of the services
of the petitioner by the respondent w.e.f. 2002 to 2010 without complying with the provisions of
the Act is illegal and unjustified, hence, the petitioner is held entitled for the seniority and
continuity without considering the period of breaks which were given to her intentionally from time
to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for regularization of the
petitioner shall be considered and processed in accordance with the policy of State Government.
3339
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
14. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
15. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I
have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly,
issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No. 3.
16. In support of this issue, no evidence has been led by the respondent in order to show
that as to how this reference is not maintainable especially when the same has been made by the
appropriate government to this Court for adjudication. Hence, in view of no evidence on record, it
cannot be said that the present reference is not maintainable. Accordingly, this issue is decided in
favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is held entitled for the seniority
and continuity in service without considering the period of breaks which were given to her
intentionally from time to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for
regularization of the petitioner shall be considered and processed by the respondent in accordance
with the policy of State Government. However, the petitioner is not entitled to any back wages and
as such the reference is ordered to be answered in favour of the petitioner and against the
respondent. Let a copy of this award be sent to the appropriate government for publication in
official gazette. File, after completion, be consigned to records.
Announced in the open Court today on this 29th Day of June, 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.
:
05 of 2013.
Instituted on.
:
27.2.2013.
Decided on
:
29.6.2016.
Raksha Kumari D/o Shri Nand Lal R/o VPO Jangi, Tehsil Moorang, District Kinnaur, HP.
...Petitioner.
3340
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
Vs.
Executive Engineer, IPH Division Pooh, District Kinnaur, HP.
...Respondent
Reference under Section 10 of the Industrial Disputes Act, 1947
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Shri H.N Kashyap, ADA.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether termination of the services of Smt. Raksha Kumari D/o Shri Nand Lal R/o
Village & P.O Jangi, Tehsil Moorang, District Kinnaur, HP from time to time by the
Executive Engineer, I&PH Division Pooh, District Kinnaur HP w.e.f. 2002 to 2010
without complying with the provisions of Industrial Disputes Act, 1947 is legal and
justified? If not, what amount of back-wages, seniority, past service benefits and
compensation the above worker is entitled to from the above employer?”
2.
Briefly, the case of the petitioner is that w.e.f. 1.4.1986, she had been employed as
beldar on daily wages basis by the respondent division which was subsequently bifurcated and a
new division was constituted at Pooh and the services of the petitioner were transferred to the new
division and as such presently the petitioner is working under respondent division. It is further
stated that the petitioner had completed 180 working days (as required in a Tribal area) in a
calendar year for so many years but the respondent had given breaks in her service with malafide
intention. It is also stated that juniors/contemporary workmen to the petitioner namely Manohar
Lal, Yumpal Singh and Ram Bhagat were allowed to continue in their service without any breaks
and even their services have also been regularized whereas the services of the petitioner had not
been regularized by the respondent and as such the action of the respondent is arbitrary, illegal and
contrary to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act).
Against his back-drop a prayer has been made that the respondent be directed to regularize the
services of the petitioner along-with seniority and continuity including back-wages.
3. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability and that being the heavy snow bound
area, there was no working season for labourer during the months of October to March/April. On
merits, it has been asserted that the petitioner had been engaged on daily wage/seasonal basis in
September, 1988, under respondent division at Reckongpeo and on bifurcation of division to Pooh,
the muster rolls/vouchers were also transferred to IPH Division Pooh and as such the petitioner was
engaged on seasonal basis on Flow Irrigation Scheme, Jangi, Phase-1 by respondent department. It
is denied that the petitioner had completed 180 days in each calendar year. It is asserted that the
work in Akpa sub- division is a seasonal one and labourers were deployed for one season to another
as the Akpa sub division is a tribal and snow bound area, hence, due to snow there is no working
season during the months of October to March/April and depends up to the conditions of weather
and as such the workers are being engaged against development work founded during working
season. It is denied that the services of the petitioner were terminated from time to time. It is
asserted that the services of S/Shri Manohar Lal, Yumpal Singh and Ram Bhagat, who are
juniors/contemporary workmen to the petitioner have been regularized as they have completed 180
working days in each calendar year without any break and since the petitioner had not completed
180 working days in each calendar year, her services were not regularized. The respondent prayed
for the dismissal of the petition.
3341
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
4. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which
were struck on 13.8.2014.
1. Whether the termination of the services of the petitioner from time to time w.e.f. 2002
to 2010 is illegal and unjustified as alleged?
...OPP
2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to?
..OPP
3. Whether the present reference is not maintainable as alleged in preliminary objection?
...OPR
4. Relief.
5. Besides having heard the learned counsels for the parties, I have also gone through the
record of the case carefully.
6. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to seniority and continuity.
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent per operative part of award.
Reasons for findings.
Issues no.1.
7.
To prove her case, the petitioner stepped into the witness box as PW-1 to depose that
w.e.f. 1st April, 1986, she was appointed as beldar on daily wages in IPH Division Reckongpeo but
the above said division was bifurcated and new division was created and her service record was
transferred to IPH division Pooh and she was employed with the respondent on daily wages since
her appointment. She had completed 180 days in each calendar year and the work with the
respondent department was continuous in nature. Some of her juniors namely Manohar Lal, Bhoom
Pal Singh, Ram Bhagat and Bhumi Dev were regularized by the department and as such the action
of the respondent is arbitrary, illegal and against the provisions of I.D Act. In cross-examination,
she admitted that District Kinnaur is snow bound area for 3-4 months and during the period of
snow, there is no work and that the department used to distribute the work among the workers on
uniform basis so that everyone gets the opportunity to work. She denied that she had completed 180
days in eight years only but admitted that she used to be engaged on muster roll basis only. She
denied that she used to leave the job at her own and that Manohar Lal, Bhoom Pal Singh, Ram
Bhagat and Bhumi Dev are not juniors to her. She admitted that the department used to call the
workers whenever there is availability of work.
8. On the other hand, the respondent examined one Shri Dawa Singh, 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 authority letter Ex. RW-1/B and
mandays chart of petitioner Ex. RW-1/C. In cross-examination, he admitted that Mohan Lal and
3342
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
Bhum Pal Singh were juniors to the petitioner and that breaks were given to the petitioner and she
was not allowed to complete 180 days in a year.
9.
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.
10. After the closer scrutiny of the record, it has become clear that the petitioner was
initially engaged in the year 1998 and it is also the admitted case of the respondent that she is being
engaged regularly in every working season. It is not in dispute that the mandatory working days of
240 days in a calendar year have been reduced to 180 days in Tribal/Snow bound area by the State
Government. As per mandays chart Ex. RW-1/C, the petitioner had completed 191 days in the year
1993, 199 days in the year, 1994, 193 days in the year, 1996, 187 days in 1997, 224 days in 1998,
215 days in 1999, 194 days in 200 and 197 days in the year, 2001. The aforesaid year wise
mandays chart of the petitioner also shows that she had worked for 174, days in 2002, 166 days in
2003, 178.5 days in the year, 2004, 165 days in 2005, 136.5 days in 2006, 121 days in 2007, 151
days in 2008, 145 days in 2009, 54 days in 2010, 158 days in 2011, 108 days in 2012 and 149 days
in the year, 2013. The case of the petitioner is that the respondent had given breaks in her service
with malafide intention despite the fact that work with the respondent department was continuous
in nature. Though, the case of the respondent is that since the work being allotted to the workers
including the petitioner was on coterminus basis, therefore, the workers automatically stood
terminated/dis-engaged keeping in view the principles of co-terminus basis. However, in cross-
examination, RW-1 admitted that the breaks were given to the petitioner and she was not allowed
to complete 180 days in a year. Therefore, from the cross-examination of RW-1 it has become clear
that intentional breaks were given to the petitioner so that she could not complete 180 days in a
calendar year which action of the respondent by not allowing the petitioner to complete 180 days
w.e.f. 2002 to 2010 without complying with the provisions of the Act was not bonafide and was
only adopted to defeat the provisions of section 25-F of the Act and the same amounts to unfair
labour practice. Hence, I have no hesitation in holding that such termination/dis-engagement of the
petitioner from time to time w.e.f. 2002 to 2010 in contravention of the provisions of the Act is
illegal and unjustified.
11. The learned counsel for the petitioner further contended that though the petitioner was
not allowed to complete 180 days in every calendar year w.e.f. 2002 to 2010 whereas at the same
time her juniors namely Manohar Lal, Yum Pal Singh and Ram Bhagat have been allowed to
continue in their service without any breaks and even their services have been regularized. It has
been admitted by the respondent in the reply that juniors to the petitioner S/Shri Manohar Lal, Yum
Pal Singh and Ram Bhagat have been regularized by the department as they have completed 180
days in every calendar year and fulfilled the criteria for regularization.
12. Therefore, from the perusal of record, it has become clear that the petitioner was not
allowed to complete 180 days in every calendar year whereas at the same time her juniors were
allowed to complete 180 days in every calendar which is against the provisions of section 25-G of
the Act. Hence, it can safely be held that time to time termination of the services of the petitioner
by the respondent w.e.f. 2002 to 2010 without complying with the provisions of the Act is illegal
and unjustified. Accordingly, this issue is answered in favour of the petitioner and against the
respondent.
Issue no. 2
13. Since, I have held under issue no.1 above that time to time termination of the services
of the petitioner by the respondent w.e.f. 2002 to 2010 without complying with the provisions of
the Act is illegal and unjustified, hence, the petitioner is held entitled for the seniority and
3343
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
continuity without considering the period of breaks which were given to her intentionally from time
to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for regularization of the
petitioner shall be considered and processed in accordance with the policy of State Government.
14. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
15. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I
have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly,
issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No.3.
16. In support of this issue, no evidence has been led by the respondent in order to show
that as to how this reference is not maintainable especially when the same has been made by the
appropriate government to this Court for adjudication. Hence, in view of no evidence on record, it
cannot be said that the present reference is not maintainable. Accordingly, this issue is decided in
favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is held entitled for the seniority
and continuity without considering the period of breaks which were given to her intentionally from
time to time w.e.f. 2002 to 2010. It is made clear that the entitlement, if any, for regularization of
the petitioner shall be considered and processed by the respondent in accordance with the policy of
State Government. However, the petitioner is not entitled to any back wages and as such the
reference is ordered to be answered in favour of the petitioner and against the respondent. Let a
copy of this award be sent to the appropriate government for publication in official gazette. File,
after completion, be consigned to records.
Announced in the open Court today on this 29th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
3344
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Ref.
:
72 of 2013.
Instituted on.
:
5.10.2013.
Decided on
:
29.6.2016.
Norjang Yum W/o Shri Gian Chand R/o VPO Jangi, Tehsil Moorang, District Kinnaur, HP.
...Petitioner.
Vs.
Executive Engineer, IPH Division Pooh, District Kinnaur, HP.
...Respondent.
Reference under Section 10 of the Industrial Disputes Act, 1947
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Shri H.N Kashyap, ADA.
AWARD
The following reference has been sent by the appropriate government for adjudication:
“Whether time to time termination of the services of Smt. Norjang Yum W/o Shri Gian
Chand R/o Village & P.O Jangi, Tehsil Moorang, District Kinnaur, HP by the
Executive Engineer, I&PH Division Pooh, District Kinnaur HP w.e.f. 2003 to 2010
without complying with the provisions of Industrial Disputes Act, 1947 isblegal and
justified? If not, what amount of back-wages, seniority, past service benefits and
compensation the above worker is entitled to from the above employer?”
2.
Briefly, the case of the petitioner is that w.e.f. 1.4.1993, she had been employed as
beldar on daily wages basis by the respondent division which was subsequently bifurcated and a
new division was constituted at Pooh and the services of the petitioner were transferred to the new
division and as such presently the petitioner is working under respondent division. It is further
stated that the petitioner had completed 180 working days (as required in a Tribal area) in a
calendar year for so many years but the respondent had given breaks in her service with malafide
intention. It is also stated that juniors/contemporary workmen to the petitioner namely Manohar
Lal, Yumpal Singh and Ram Bhagat were allowed to continue in their service without any breaks
and even their services have also been regularized whereas the services of the petitioner had not
been regularized by the respondent and as such the action of the respondent is arbitrary, illegal and
contrary to the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as to Act).
Against his back-drop a prayer has been made that the respondent be directed to regularize the
services of the petitioner along-with seniority and continuity including back-wages.
3. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability and that being the heavy snow bound
area, there was no working season for labourer during the months of October to March/April. On
merits, it has been asserted that the petitioner had been engaged on daily wage/seasonal basis in
May, 1996 under respondent division at Reckongpeo and on bifurcation of division to Pooh, the
3345
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
muster rolls/vouchers were also transferred to IPH Division Pooh and as such the petitioner was
engaged on seasonal basis on Flow Irrigation Scheme, Jangi, Phase-1 by respondent department. It
is denied that the petitioner had completed 180 days in each calendar year. It is asserted that the
work in Akpa sub- division is a seasonal one and labourers were deployed for one season to another
as the Akpa sub division is a tribal and snow bound area, hence, due to snow there is no working
season during the months of October to March/April and depends up to the conditions of weather
and as such the workers are being engaged against development work founded during working
season. It is denied that the services of the petitioner were terminated from time to time. It is
asserted that the services of S/Shri Manohar Lal, Yumpal Singh and Ram Bhagat, who are
juniors/contemporary workmen to the petitioner have been regularized as they have completed 180
working days in each calendar year without any break and since the petitioner had not completed
180 working days in each calendar year, her services were not regularized. The respondent 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 9.9.2014.
1.
Whether the termination of the services of the petitioner from time to time w.e.f. 2003
to 2010 is illegal and unjustified as alleged?
...OPP.
2. If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to?
... OPP.
3. Whether the present reference is not maintainable as alleged in preliminary objection?
...OPR.
4.
Relief.
5.
Besides having heard the learned counsels for the parties, I have also gone through the
record of the case carefully.
6.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to seniority and continuity.
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent per operative part of award.
Reasons for findings.
Issues no.1.
7. To prove her case, the petitioner stepped into the witness box as PW-1 to depose that
w.e.f. 1st April, 1993, she was appointed as beldar on daily wages in IPH Division Reckongpeo but
the above said division was bifurcated and new division was created and her service record was
transferred to IPH division Pooh and she was employed with the respondent on daily wages since
her appointment. She had completed 180 days in each calendar year and the work with the
respondent department was continuous in nature. Some of her juniors namely Manohar Lal, Bhoom
3346
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
Pal Singh, Ram Bhagat and Bhumi Dev were regularized by the department and as such the action
of the respondent is arbitrary, illegal and against the provisions of I.D Act. In cross-examination,
she admitted that District Kinnaur is snow bound area for 3-4 months and during the period of
snow, there is no work and that the department used to distribute the work among the workers on
uniform basis so that everyone gets the opportunity to work. She denied that she had completed 180
days in five years only but admitted that she used to be engaged on muster roll basis only. She
denied that she used to leave the job at her own and that Manohar Lal, Bhoom Pal Singh, Ram
Bhagat and Bhumi Dev are not juniors to her. She admitted that the department used to call the
workers whenever there is availability of work.
8.
On the other hand, the respondent examined one Shri Dawa Singh, 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 authority letter Ex. RW-1/B and
mandays chart of petitioner Ex. RW-1/C. In cross-examination, he admitted that Mohan Lal and
Bhum Pal Singh were juniors to the petitioner and that breaks were given to the petitioner and she
was not allowed to complete 180 days in a year.
9. 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.
10. After the closer scrutiny of the record, it has become clear that the petitioner was
initially engaged in the year 1996 and it is also the admitted case of the respondent that she is being
engaged regularly in every working season. It is not in dispute that the mandatory working days of
240 days in a calendar year have been reduced to 180 days in Tribal/Snow bound area by the State
Government. As per mandays chart Ex. RW-1/C, the petitioner had completed 195 days in the year
1996, 262 days in the year, 1998, 230 days in the year, 1999, 235 days in 2000, and 199 days in
2001. The aforesaid year wise mandays chart of the petitioner also shows that she had worked for
176 days in the year, 2002, 162 days in 2003, 172.5 days in 2004, 148 days in 2005, 135.5 days in
2006, 172 days in 2007, 151 days in 2008, 110 days in 2009, 54 days in 2010, 158 days in 2011,
108 days in 2012 and 149 days in 2013. The case of the petitioner is that the respondent had given
breaks in her service with malafide intention despite the fact that work with the respondent
department was continuous in nature. Though, the case of the respondent is that since the work
being allotted to the workers including the petitioner was on co-terminus basis, therefore, the
workers automatically stood terminated/dis-engaged keeping in view the principles of co-terminus
basis. However, in crossexamination, RW-1 admitted that the breaks were given to the petitioner
and she was not allowed to complete 180 days in a year. Therefore, from the cross-examination of
RW-1 it has become clear that intentional breaks were given to the petitioner so that she could not
complete 180 days in a calendar year which action of the respondent by not allowing the petitioner
to complete 180 days w.e.f. 2003 to 2010 without complying with the provisions of the Act was not
bonafide and was only adopted to defeat the provisions of section 25-F of the Act and the same
amounts to unfair labour practice. Hence, I have no hesitation in holding that such termination/dis-
engagement of the petitioner from time to time w.e.f. 2002 to 2010 in contravention of the
provisions of the Act is illegal and unjustified.
11. The learned counsel for the petitioner further contended that though the petitioner was
not allowed to complete 180 days in every calendar year w.e.f. 2003 to 2010 whereas at the same
time her juniors namely Manohar Lal, Yum Pal Singh and Ram Bhagat have been allowed to
continue in their service without any breaks and even their services have been regularized. It has
been admitted by the respondent in the reply that juniors to the petitioner S/Shri Manohar Lal, Yum
Pal Singh and Ram Bhagat have been regularized by the department as they have completed 180
days in every calendar year and fulfilled the criteria for regularization.
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12. Therefore, from the perusal of record, it has become clear that the petitioner was not
allowed to complete 180 days in every calendar year whereas at the same time her juniors were
allowed to complete 180 days in every calendar which is against the provisions of section 25-G of
the Act. Hence, it can safely be held that time to time termination of the services of the petitioner
by the respondent w.e.f. 2003 to 2010 without complying with the provisions of the Act is illegal
and unjustified. Accordingly, this issue is answered in favour of the petitioner and against the
respondent.
Issue no. 2
13. Since, I have held under issue no.1 above that time to time termination of the services
of the petitioner by the respondent w.e.f. 2003 to 2010 without complying with the provisions of the
Act is illegal and unjustified, hence, the petitioner is held entitled for the seniority and continuity
without considering the period of breaks which were given to her intentionally from time to time
w.e.f. 2003 to 2010. It is made clear that the entitlement, if any, for regularization of the petitioner
shall be considered and processed in accordance with the policy of State Government.
14. Now, the question which arises for consideration, before this Court is as to whether the
petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In
(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the
Hon’ble Supreme Court has held that once the order of termination of services of an employee is
set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an
employee to get reinstated does not necessarily result in payment of full or partial back-wages,
which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in
2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be
granted mechanically, upon an order of termination be declared illegal. It is further held that
reinstatement must not be accompanied by payment of full back wages even for the period when
the workman remained out of service and contributed little or nothing to the Industry.
15. Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I
have no hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly,
issue no.2 is partly decided in favour of the petitioner and against the respondent.
Issue No. 3.
16. In support of this issue, no evidence has been led by the respondent in order to show
that as to how this reference is not maintainable especially when the same has been made by the
appropriate government to this Court for adjudication. Hence, in view of no evidence on record, it
cannot be said that the present reference is not maintainable. Accordingly, this issue is decided in
favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is held entitled for the seniority
and continuity in service without considering the period of breaks which were given to her
intentionally from time to time w.e.f. 2003 to 2010. It is made clear that the entitlement, if any, for
regularization of the petitioner shall be considered and processed by the respondent in accordance
with the policy of State Government. However, the petitioner is not entitled to any back wages and
as such the reference is ordered to be answered in favour of the petitioner and against the
respondent. Let a copy of this award be sent to the appropriate government for publication in
official gazette. File, after completion, be consigned to records.
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Announced in the open Court today on this 29th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
____________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL
TRIBUNAL-CUM- LABOUR COURT, SHIMLA.
Ref. no.
:
33 of 2009.
Instituted on
:
27.4.2009.
Decided on
:
4.6.2016.
Munish Kumar S/o Shri Krishan Lal R/o Village Bhora, P.O Chambaghat, Tehsil & District
Solan, HP.
..Petitioner.
VS.
1. The Vice President M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP.
2. I.K Bali, Contractor C/o M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP.
...Respondents
Reference under section 10 of the Industrial Disputes Act, 1947
For petitioner
:
Shri J.C. Bhardwaj, AR
For respondent no.1
:
Shri Rahul Mahajan, Advocate.
For respondent no.2
:
Ex-parte.
AWARD
The reference for adjudication, sent by the appropriate government, is as under:
”Whether the termination of the services of Shri Munish Kumar S/o Shri Krishan Lal
workman by the i) the Vice President M/s Himachal Futuristic Communications Ltd.,
(Wireless Division) 8, Electronics Complex Chambaghat District Solan, HP ii) I.K
Bali, Contractor C/o M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP w.e.f. 2.7.2007
without complying the provisions of Industrial Disputes Act, 1947 is proper and
justified? If not, what relief of back wages, seniority and amount of compensation the
above aggrieved workman is entitled to?”
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2. Facts, in brief are that initially the petitioner was engaged by the respondent no.1
directly on 26.6.2000 as a safai karmchari (sweeper) and he worked as such in the administrative
department to carry on every type of cleaning works. The work assigned to the petitioner is directly
related to the respondent no.1 but after some time his services were transferred illegally and shown
on the rolls of the contractor i.e respondent no.2 without taking any consent or option from the
petitioner just to evade liability. It is further stated that the petitioner did not complain regarding his
transfer from the rolls of the company to the roll of the contractor due to the reason that he was
threatened termination whereas the nature of work and place of working remained the same on
which he was working earlier since his initial appointment. Since the cleanliness of the company is
an essential and fore most work and it cannot be called a temporary or casual work, hence, the
contract works are the out-come of sham and genuine contracts and contractors are only name sake
and name lender only. The respondent no.1 exercised full administrative and financial control and
as such there was relationship of master and servant between the petitioner and respondent no.1 and
the activity of cleaning always remained regular. It is also stated that as per section 10 of the
Contract Regulation and Abolition Act, 1970, the perennial nature of work is prohibited to be taken
through contractors, hence principal employer is under statutory obligation to carry on the
employment of sweepers on permanent roll of the company and as such the services of the
petitioner at later stage shown on the rolls of the contractor is a camouflage sham and in genuine.
Even, no notice of change in service had been served upon the petitioner. The petitioner had
completed 240 days in the employment of the respondents and as such he was in continuous service
for the purpose of section 25-B of the Industrial Disputes Act, 1947 (hereinafter referred to as Act)
and the respondent while removing the petitioner from employment has committed many
illegalities against the set norms and even no notice under section 25-N/25-F of the Act was served
upon him before terminating his services. It is stated that the work and conduct of the petitioner
was more than satisfactory and non-stigmatic in all respects as he was neither served any
explanation call, show cause notice, warning, chargesheet nor subjected to any domestic enquiry.
Against this back-drop, the petitioner prayed that he be held the workman of the respondent
company and he be reinstated on the same post and work in the employment of respondent no.1
since the date of his termination i.e from 2.7.2007 with full back-wages, seniority and other
incidental service benefits along-with costs.
3.
By filing separate reply, the respondent no.1 contested the claim of the petitioner
wherein preliminary objections have been taken qua maintainability and there was no employee
and employer relationship between the petitioner and respondent no.1. On merits, it has been
asserted that the petitioner was a contract labour, who had been deputed by Himachal Security
Services, Salogra with the industrial establishment of respondent as safai karamchari (sweeper) in
terms of agreements executed between respondent company and Himachal Security Service,
Salogra Himachal Pradesh for providing of work force as agreed in terms of the contract which
were extended from time to time. It is further submitted that the respondent no.1 had a valid licence
and were authorized to engage and provide contract labour i.e safai karmachari for cleaning. Being
the employer of the petitioner, the attendance, salary, payment of provident fund under the EPF &
MP Act and ESI Act, 1948 and all other statutory compliance was done by the contractor and
engaging of contract labour for general cleaning/safai karamchari is not prohibited under section 10
of the Contract Labour & Abolition Act, 1970. From the very beginning, the petitioner was the
worker of contractor and not of the respondent company and he was doing the work of safai
karamchari in the industrial establishment of respondent company on being deployed by contractor,
hence, there is no violation of labour legislation. Since, the petitioner was the employee of
contractor i.e respondent no.2 and as such the respondent no.1 is not responsible to pay him all
statutory benefits under the law. Hence, respondent no.1 prayed for the dismissal of the petition.
4.
Before, I proceed further, it is important to point out here that after having been duly
served, the respondent no.2 (contractor) had appeared in person on 10.3.2011 but thereafter he
failed to appear before this Court, hence, he was proceeded against ex-parte on 19.4.2011.
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5.
By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
6. On the pleadings of the parties, the following issues were framed on 8.4.2010.
1.
Whether the services of the petitioner have been terminated illegally and in an
unjustified manner?
...OPP.
2. If issue no.1 is proved in affirmative, to what service benefits and compensation the
petitioner is entitled to?
... OPP.
3. Whether the claim petition is not maintainable in view of preliminary objection?...OPR.
4. Relief.
7. I have heard the learned counsel for the parties and have also gone through the record
of the case carefully.
8. For the reasons to be recorded hereinafter while discussing issues for determination my
findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to lump sum compensation from respondent
no.2 (contractor).
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against theb respondent no.2 (contractor) per operative
part of award.
Reasons for findings
Issue no.1
9. The AR appearing on behalf of the petitioner contended that initially the services of the
petitioner, as safai karamchari, have been engaged by the respondent no.1 company but lateron he
has been shown engaged through respondent no.2, contractor. He further contended that the
services of the petitioner were terminated illegally without following the mandatory provisions of
the Act as neither any notice was served upon him nor any enquiry was conducted against him. He
also contended that there is no contract between the respondent company and so called contract to
engage the workers through contractor is sham, ingenuine and camouflage for all purposes and
since the petitioner had completed 240 working days in each calendar year preceding his
termination as such his termination without the compliance of the provisions of the Act is illegal
and unjustified.
10. On the other hand, the learned counsel for the respondent no. company contended that
the petitioner was engaged through the respondent no.2 contractor under the provisions of Contract
Labour Act. He further contended that there was no relationship of employer and employee
between the parties and the respondent no.1 had availed the services of the petitioner through the
contractor.
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11. The petitioner has appeared into the witness box as PW-1, and tendered in evidence his
affidavit wherein he supported almost all the averment as stated in the claim petition. In cross-
examination, he denied that prior to his engagement, the work of cleaning was being executed by
Himachal Security Services. He further denied that he was deputed by Shri I.K Bali respondent
no.2 with respondent no.1 for work. He expressed his ignorance that the wages, ESI and PF were
being paid to him by the contractor. He denied that the employment card has been issued by the
contractor to him. He further denied that his work was being supervised by the supervisor of
respondent no. 2.
12. On the contrary, the respondent no.1 examined one Shri M.S Gupta, General Manager,
who tendered in evidence his affidavit Ex. RA wherein he supported almost all the contents as
made in the reply. He also tendered in evidence copy of Board Resolution Ex. RA-1, agreements
Ex. RB to Ex. RD, certificate of registration Ex. RE, letter dated 1.6.2007 Ex. RF, agreement dated
14.6.2007 Ex. RG, licence Ex. RH, letter dated 14.1.2008 Ex. RJ and reply to demand notice Ex.
RK. In cross-examination, he stated that neither the petitioner was his employee nor he was
transferred by them. He denied that on 9.1.2004, Bali was not their contractor but admitted that first
agreement was executed on 14.10.2000. He denied that the registration certificate and licence were
issued only for the purpose of loading and unloading and that the agreements Ex. RB to RD have
been fabricated. He further denied that the work was being taken by the company from workers and
that the salary to them was also being paid by the company. He denied that they have no
registration certificate to engage contract labour w.e.f. 2000 and that the services of contractor I.K
Bali was engaged w.e.f. 1.4.2007 to 31.3.2009. He also denied that the services of the petitioner
had been terminated by the company.
13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof it has become clear that the petitioner had worked as safai karamchari in the industrial
establishment of respondent no.1 company. Now, the question which arises for consideration
before this Court is as to whether the petitioner was the employee of respondent no.1 or that or
respondent no.2. As per the provisions of section 7 & 12 of the Contract Labour (Regulation and
Abolition) Act, the principal employer i.e respondent no.1 (company) should have a certificate of
registration from the prescribed authority to engage the contract labour and secondly the contractor
i.e respondent no.2 should have a licence issued by competent authority to provide the contract
labour. The respondent no.1 has placed on record the copy of the registration certificate Ex. RX
issued in its favour to engage the contract labour and the copy of the licence Ex. RH issued in
favour of respondent no.2 (contractor) to provide the contract labour by the competent authority. It
is not in dispute that the employment of contract labour in respondent no.1 company has not been
prohibited by the appropriate government as provided under section 10 of the Contract Labour Act.
RW-1 had also tendered in evidence the copies of the agreements Ex. RB to Ex. RD, executed
between respondent no.1 and respondent no.2. From the perusal of the aforesaid agreements, it has
become clear that the work of housekeeping/cleaning was allotted by respondent no.1 to respondent
no.2. The petitioner has failed to place on record any appointment letter or any other document to
show that he was engaged by respondent no.1 company at any point of time. Therefore, in view of
the overvelming evidence on record led by respondent no.1, it has become clear that the petitioner
was not the employee of respondent no.1 company and he was the employee of respondent no.2
contractor who had deputed him with respondent no.1 under the Contract Labour Act. Hence, it has
been established on record that there is no relationship of employee and employer between the
petitioner and respondent no.1 company.
14. Now, the next question which arises for consideration before this Court is as to
whether the contract was sham, ingeniune and camouflage as contended by the AR for the
petitioner. It is by now well settled that if the industrial adjudicator finds the contract between the
principal employer and the contractor to be a sham, nominal and a camouflage to deny employment
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benefits to the employee, it can grant relief to the employee by holding that the workman is the
direct employee of the principal employer. In (2009) 13 SCC titled as International Airport
Authority of India Vs. International Air Cargo Workers Union and Anr., it has been held by
the Hon’ble Apex Court as under:
“36. But where there is no abolition of contract labour under section 10 of CLRA Act, but
the contract labour contend that the contract between principal employer and contractor is
sham and nominal, the remedy is purely under the ID Act. The principles in Gujarat
Electricity Board continue to govern the issue. The remedy of the workmen is to approach
the industrial adjudicator for an adjudication of their dispute that they are the direct
employees of the principle employer and the agreement is sham, nominal and merely a
camouflage, even when there is no order under section 10(1) of CLRA Act.
37. The industrial adjudicator can grant the relief sought if it finds that contract between
principal employer and the contractor is sham, nominal and merely a camouflage to deny
employment benefits to the employer and that there is in fact a direct employment, by
applying tests like: who pays the salary; who has the power to remove/dismiss from service
or initiate disciplinary action; who can tell the employee the way in which the work should
be done, in short who has direction and control over the employee. But where there is no
notification under section 10 of the CLRA Act and where it is not proved in the industrial
adjudication that the contract was sham/nominal and camouflage, then the question of
directing the principal employer to absorb or regularize the services of the contract labour
does not arise.
In the aforesaid judgment, the Hon’ble Supreme Court also explained the terms “control”
and “supervision” which reads as under:
“38.The tests that are applied to find out whether a person is an employee or an independent
contractor may not automatically apply in finding out whether the contract labour
agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for
supply of labour, necessarily, the labour supplied by the contractor will work under the
directions, supervision and control of the principal employer but that would not make the
worker a direct employee of the principal employer, if the salary is paid by contractor, if the
right to regulate employment is with the contractor, and the ultimate supervision and control
lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract
labour, when such labour is assigned/allotted/sent to him. But it is the contractor as
employer, who chooses whether the worker is to be assigned/allotted to the principal
employer or used otherwise. In short worker being the employee of the contractor, the
ultimate supervision and control lies with the contractor as he decides where the employee
will work and how long he will work and subject to what conditions. Only when the
contractor assigns/sends the worker to work under the principal employer, the worker works
under the supervision and control of the principal employer but that is secondary control.
The primary control is with the contractor.”
53.13……………… Merely because the contract labour work is under the supervision of
the officers of the principal employer, it cannot be taken as evidence of direct employment
under the principal employer.
54. …………………..Exercise of some control over the activities of contract labour while
they discharge their duties as labourers, is inevitable and such exercise is not sufficient to
hold that the contract labour will become the direct employees of the principle employer.”
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15. In the back-ground of the aforesaid legal position, it was for the petitioner to prove
that he was working under the direct control & supervision of the official of the respondent no.1
company and the contract was sham, ingenuine and camouflage for all purposes. However, except
for the bald statement of the petitioner, there is no other evidence on record to suggest that he was
doing the work under the direct supervision of the officials of the company and that the contract
was sham, ingenuine, camouflage for all purposes. Moreover, no evidence has been led by the
petitioner to show that initially he was engaged by the respondent no.1 directly and thereafter his
services were illegally transferred and shown on the rolls of the contractor.
16. Hence, in view of the evidence led by the parties, it cannot be said that the petitioner
was the direct employee of the respondent no.1 and the contract between the company and
contractor is sham, ingenuine and camouflage for all purposes and as such it has been established
that there is no relationship of employer and employee between the petitioner and respondent no.1
company.
17. Since, it has been established on record that the petitioner was the employee of
respondent no.2 contractor, now, it has to be seen as to whether the services of the petitioner had
been illegally terminated by the respondent no.2. Before, I proceed further it is relevant to mention
here that after receiving the reference by this Court, notices were issued to both the respondents but
none appeared on behalf of the respondent no.2 Contractor despite having been served, hence, he
was proceeded against ex-parte vide order dated 19.4.2010. The petitioner in his claim petition as
well as in his affidavit by way of evidence has stated as PW-1 that he was engaged as safai
karamchari on 26.6.2000 and worked as such till 2.7.2007. He also tendered in evidence the copy
of reply dated 13.9.2007, Ex. PA, filed by respondent no.2 before the Labour-cum-Conciliation
Officer to the demand notice raised by him wherein the respondent no.2 had admitted that the
petitioner was on their muster roll w.e.f. 8.6.2001 to November, 2001 and then April, 2002 to
30.6.2007 with a break in service w.e.f. 3.5.2007 to 13.5.2007. Therefore, from the perusal of the
aforesaid reply of respondent no.2 Ex. PA, it has become clear that the petitioner had completed
240 days in twelve calendar months preceding his termination. Hence, before terminating the
services of the petitioner, it was incumbent upon the respondent no.2 to have complied with the
provisions of section 25-F of the Act which lay down certain conditions precedent to the
retrenchment of a workman (workmen) and requires the employer to comply with those conditions
as per clauses (a) to (c) which are mandatory in nature. It has been held by our own Hon’ble High
Court in Latest HLJ 2007 (HP) 776 titled as State of Himachal Pradesh Vs. Sohan Lal that the
settled law in counting 240 days is that the same has to be calculated preceding the date of
retrenchment during twelve calendar months and not a year. The relevant extract of the aforesaid
judgment is reproduced as under:
“2. I have perused the record and heard the parties. The Labour Court has come to the right
conclusion that the workman could not be retrenched without complying with Section 25-F
of the Industrial Disputes Act, 1947. Though the petitioner-State has place on record the
copy of man-days to substantiate its plea that the workman has not completed 240 days
preceding the date of his retrenchment. The settled law for counting 240 days is that the
same has to be calculated preceding the date of retrenchment during 12 calendar months and
not a year.”
In 2010 (5) SCC 497 titled as Anoop Sharma Vs. Executive Engineer, Public Health
division no.1, Panipat (Haryana), the Hon’ble Supreme Court has held that the termination of the
services of an employee by way of retrenchment without complying with the provisions of section
25-F of the Act is a nullity. The relevant extract of aforesaid judgment is reproduced as under:
“16. An analysis of the above reproduced provisions shows that no workman employed in
any industry who has been in continuous service for not less than one year under an
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employer can be retrenched by that employer until the conditions enumerated in Clauses (a)
and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is
required to give to the workman one month’s notice in writing indicating the reasons for
retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the
employer to pay to the workman at the time of retrenchment, compensation equivalent to
fifteen days’ average pay for every completed year of continuous service or any part thereof
in excess of six months.
17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory
and non-compliance thereof renders the retrenchment of an employee nullity……………..”
18. Therefore, in view of the unrebutted testimony of the petitioner and also in view of the
reply of respondent no.2 Ex. PA, to the demand notice, it has been established that the petitioner
had worked continuously for more than 240 days in twelve calendar months preceding his
termination as such the respondent no.2 was under the legal obligation to comply with the
provisions of the section 25-F of the Industrial Disputes Act before terminating his services. But,
no such compliance was made by the respondent no.2 contractor, hence, there is violation of
section 25-F of the Act, on the part of respondent no.2 contractor. As a result, the termination of
petitioner w.e.f. 2.7.2007 is not sustainable in the eyes of law and is hereby set aside. Accordingly,
this issue is decided in favour of petitioner and against respondent no.2 contractor.
Issue no. 2.
19. Since, I have held under issue no. 1 above, that the termination of the services of the
petitioner w.e.f. 2.7.2007 by respondent no.2 without complying with the provisions of the Act is
not legal and justified, hence, the question arises as to what service benefits, the petitioner is
entitled. It is by now well settled that if the termination of employee is found to be illegal, the relief
by way of reinstatement with back-wages is not automatic. The Hon’ble Supreme Court in Santosh
Kumar Seal and others reported in 2010 LLR 677: 2010 III CLR 17 SC, has held that relief by
way of reinstatement with back wages is not automatic even if termination of an employee is found
to be illegal or is in contravention of the prescribed procedure and that mandatory compensation in
lieu of reinstatement and back wages in cases of such nature may be appropriate.
20. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC
327, the Hon’ble Supreme Court has held that:
“It is true that the earlier view of this Court articulated in many decisions reflected the legal
position that if the termination of an employee was found to be illegal, the relief of
reinstatement with full back wages would ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a long line of cases, this Court has consistently
taken the view that relief by way of reinstatement with back wages is not automatic and
maybe wholly inappropriate in a given fact situation even though the termination of an
employee is in contravention of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice."
21. In the present case, even though the termination of the petitioner is held to be illegal
but his reinstatement will not be appropriate relief in view of the fact that the contract between
respondent no.1 and respondent no.2 had been terminated by the company vide letter Ex. RF and
thereafter, respondent no.1 company has allotted the work of housekeeping to M/s Silver Star
Industries and Allied Services, Chandigarh by executing an agreement. Therefore, in such a
situation, it would not be appropriate to make the order of reinstatement in the present case. Hence,
taking into account all the facts and circumstances of the case, the ends of justice would be met, if
3355
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the lump sum compensation in lieu of reinstatement and back-wages is awarded to the petitioner.
Therefore, in my view the petitioner is entitled to receive a suitable, appropriate, just and equitable
compensation from the respondent no.2 Contractor and keeping in view the facts and circumstances
of the case, it would be quite reasonable and justified if lump sum compensation of ` 25,000/-
(` Twenty Five Thousand only) is awarded to the petitioner instead of reinstatement. Consequently,
this issue is decided in favour of the petitioner and against respondent no.2 Contractor.
Issue no. 3.
22. 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 findings on the aforesaid issues, the claim of the petitioner is partly
allowed and as such the respondent no.2 Contractor is directed to pay ` 25,000/- (` Twenty Five
Thousand only) as lump sum compensation to the petitioner within three months from today failing
which the same shall carry interest @ 9% per annum from the date of publication of this award.
The reference is answered accordingly. Let a copy of this award be sent to the appropriate
government for publication in official gazette. File, after completion be consigned to records.
Announced in the open Court today on this 4th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
____________
IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, HP INDUSTRIAL
TRIBUNAL-CUM- LABOUR COURT, SHIMLA.
Ref no.
:
32 of 2009.
Instituted on
:
27.4.2009.
Decided on
:
4.6.2016.
Manjeet Singh S/o Shri Pritam Dass C/o Chamela Halwai, Chowk Bazar Solan through Shri
J.C Bhardwaj, President HPAITUC Hq. Saproon Solan, HP.
...Petitioner
VS.
3. The Vice President M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP.
4. I.K Bali, Contractor C/o M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP.
...Respondents
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Reference under section 10 of the Industrial Disputes Act, 1947
For petitioner
:
Shri J.C Bhardwaj, AR
For respondent no.1
:
Shri Rahul Mahajan, Advocate.
For respondent no.2
:
Ex-parte.
AWARD
The reference for adjudication, sent by the appropriate government, is as under:
”Whether the termination of the services of Shri Manjeet Singh S/o Shri Pritam Dass
workman by the i) the Vice President M/s Himachal Futuristic Communications Ltd.,
(Wireless Division) 8, Electronics Complex Chambaghat District Solan, HP ii) I.K
Bali, Contractor C/o M/s Himachal Futuristic Communications Ltd., (Wireless
Division) 8, Electronics Complex Chambaghat District Solan, HP w.e.f. 2.7.2007
without complying the provisions of Industrial Disputes Act, 1947 is proper and
justified? If not, what relief of back wages, seniority and amount of compensation the
above aggrieved workman is entitled to?”
2. Facts, in brief are that initially the petitioner was engaged by the respondent no.1
directly on 9.1.2004 as a safai karmchari (sweeper) and he worked as such in the administrative
department to carry on every type of cleaning works till his termination on 2.7.2007. The work
assigned to the petitioner is directly related to the respondent no.1 but after some time his services
were transferred illegally and shown on the rolls of the contractor i.e respondent no.2 without
taking any consent or option from the petitioner just to evade liability. It is further stated that the
petitioner did not complain regarding his transfer from the rolls of the company to the roll of the
contractor due to the reason that he was threatened termination whereas the nature of work and
place of working remained the same on which he was working earlier since his initial appointment.
Since the cleanliness of the company is an essential and fore most work and it cannot be called a
temporary or casual work, hence, the contract works are the out-come of sham and genuine
contracts and contractors are only name sake and name lender only. The respondent no.1 exercised
full administrative and financial control and as such there was relationship of master and servant
between the petitioner and respondent no.1 and the activity of cleaning always remained regular. It
is also stated that as per section 10 of the Contract Regulation and Abolition Act, 1970, the
perennial nature of work is prohibited to be taken through contractors, hence principal employer is
under statutory obligation to carry on the employment of sweepers on permanent roll of the
company and as such the services of the petitioner at later stage shown on the rolls of the contractor
is a camouflage sham and in genuine. Even, no notice of change in service had been served upon
the petitioner. The petitioner had completed 240 days in the employment of the respondents and as
such he was in continuous service for the purpose of section 25-B of the Industrial Disputes Act,
1947 (hereinafter referred to as Act) and the respondent while removing the petitioner from
employment has committed many illegalities against the set norms and even no notice under
section 25-N/25-F of the Act was served upon him before terminating his services. It is stated that
the work and conduct of the petitioner was more than satisfactory and non-stigmatic in all respects
as he was neither served any explanation call, show cause notice, warning, chargesheet nor
subjected to any domestic enquiry. Against this back-drop, the petitioner prayed that he be held the
workman of the respondent company and he be reinstated on the same post and work in the
employment of respondent no.1 since the date of his termination i.e from 2.7.2007 with full back-
wages, seniority and other incidental service benefits along-with costs.
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3. By filing separate reply, the respondent no.1 contested the claim of the petitioner
wherein preliminary objections have been taken qua maintainability and there was no employee
and employer relationship between the petitioner and respondent no.1. On merits, it has been
asserted that the petitioner was a contract labour, who had been deputed by Himachal Security
Services, Salogra with the industrial establishment of respondent as safai karamchari (sweeper) in
terms of agreements executed between respondent company and Himachal Security Service,
Salogra Himachal Pradesh for providing of work force as agreed in terms of the contract which
were extended from time to time. It is further submitted that the respondent no.1 had a valid licence
and were authorized to engage and provide contract labour i.e safai karmachari for cleaning. Being
the employer of the petitioner, the attendance, salary, payment of provident fund under the EPF &
MP Act and ESI Act, 1948 and all other statutory compliance was done by the contractor and
engaging of contract labour for general cleaning/safai karamchari is not prohibited under section 10
of the Contract Labour & Abolition Act, 1970. From the very beginning, the petitioner was the
worker of contractor and not of the respondent company and he was doing the work of safai
karamchari in the industrial establishment of respondent company on being deployed by contractor,
hence, there is no violation of labour legislation. Since, the petitioner was the employee of
contractor i.e respondent no.2 and as such the respondent no.1 is not responsible to pay him all
statutory benefits under the law. Hence, respondent no.1 prayed for the dismissal of the petition.
4.
Before, I proceed further, it is important to point out here that after havingn been duly
served, the respondent no.2 (contractor) had appeared in person on 10.3.2011 but thereafter he
failed to appear before this Court, hence, he was proceeded against ex-parte on 19.4.2011.
5.
By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondent.
6. On the pleadings of the parties, the following issues were framed on 8.4.2010.
5. Whether the services of the petitioner have been terminated illegally and in an
unjustified manner?
...OPP.
6. If issue no.1 is proved in affirmative, to what service benefits and compensation the
petitioner is entitled to?
...OPP.
7. Whether the claim petition is not maintainable in view of preliminary objection?...OPR.
8.
Relief.
7.
I have heard the learned counsel for the parties and have also gone through the record
of the case carefully.
8. For the reasons to be recorded hereinafter while discussing issues for determination my
findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to lump sum compensation from respondent
no.2 (contractor).
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent no.2 (contractor) per operative
part of award.
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Reasons for findings.
Issue no.1
9.
The AR appearing on behalf of the petitioner contended that initially the services of
the petitioner, as safai karamchari, have been engaged by the respondent no.1 company but lateron
he has been shown engaged through respondent no.2, contractor. He further contended that the
services of the petitioner were terminated illegally without following the mandatory provisions of
the Act as neither any notice was served upon him nor any enquiry was conducted against him. He
also contended that there is no contract between the respondent company and so called contract to
engage the workers through contractor is sham, ingenuine and camouflage for all purposes and
since the petitioner had completed 240 working days in each calendar year preceding his
termination as such his termination without the compliance of the provisions of the Act is illegal
and unjustified.
10. On the other hand, the learned counsel for the respondent no. company contended that
the petitioner was engaged through the respondent no.2 contractor under the provisions of Contract
Labour Act. He further contended that there was no relationship of employer and employee
between the parties and the respondent no.1 had availed the services of the petitioner through the
contractor.
11. The petitioner has appeared into the witness box as PW-1, and tendered in evidence his
affidavit wherein he supported almost all the averment as stated in the claim petition. In cross-
examination, he denied that prior to his engagement, the work of cleaning was being executed by
Himachal Security Services. He further denied that he was deputed by Shri I.K Bali respondent
no.2 with respondent no.1 for work. He expressed his ignorance that the wages, ESI and PF were
being paid to him by the contractor. He denied that the employment card has been issued by the
contractor to him. He further denied that his work was being supervised by the supervisor of
respondent no.2.
12. On the contrary, the respondent no.1 examined one Shri M.S Gupta, General Manager,
who tendered in evidence his affidavit Ex. RA on 5.3.2013 wherein he supported almost all the
contents as made in the reply. He also tendered in evidence copy of Board Resolution Ex. RA-1,
agreements Ex. RB to Ex. RD, certificate of registration Ex. RE, letter dated 1.6.2007 Ex. RF,
agreement dated 14.6.2007 Ex. RG, licence Ex. RH, letter dated 14.1.2008 Ex. RJ and reply to
demand notice Ex. RK. In cross-examination, he stated that neither the petitioner was his employee
nor he was transferred by them. He denied that on 9.1.2004, Bali was not their contractor but
admitted that first agreement was executed on 14.10.2000. He denied that the registration certificate
and licence were issued only for the purpose of loading and unloading and that the agreements Ex.
RB to RD have been fabricated. He further denied that the work was being taken by the company
from workers and that the salary to them was also being paid by the company. He denied that they
have no registration certificate to engage contract labour w.e.f. 2000 and that the services of
contractor I.K Bali was engaged w.e.f. 1.4.2007 to 31.3.2009. He also denied that the services of
the petitioner had been terminated by the company.
13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny
thereof it has become clear that the petitioner had worked as safai karamchari in the industrial
establishment of respondent no.1 company. Now, the question which arises for consideration
before this Court is as to whether the petitioner was the employee of respondent no.1 or that or
respondent no.2. As per the provisions of section 7 & 12 of the Contract Labour (Regulation and
Abolition) Act, the principal employer i.e respondent no.1 (company) should have a certificate of
registration from the prescribed authority to engage the contract labour and secondly the contractor
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i.e respondent no.2 should have a licence issued by competent authority to provide the contract
labour. The respondent no.1 has placed on record the copy of the registration certificate Ex. RX
issued in its favour to engage the contract labour and the copy of the licence Ex. RH issued in
favour of respondent no.2 (contractor) to provide the contract labour by the competent authority. It
is not in dispute that the employment of contract labour in respondent no.1 company has not been
prohibited by the appropriate government as provided under section 10 of the Contract Labour Act.
RW-1 had also tendered in evidence the copies of the agreements Ex. RB to Ex. RD, executed
between respondent no.1 and respondent no.2. From the perusal of the aforesaid agreements, it has
become clear that the work of housekeeping/cleaning was allotted by respondent no.1 to respondent
no.2. The petitioner has failed to place on record any appointment letter or any other document to
show that he was engaged by respondent no.1 company at any point of time. Therefore, in view of
the overvelming evidence on record led by respondent no.1, it has become clear that the petitioner
was not the employee of respondent no.1 company and he was the employee of respondent no.2
contractor who had deputed him with respondent no.1 under the Contract Labour Act. Hence, it has
been established on record that there is no relationship of employee and employer between the
petitioner and respondent no.1 company.
14. Now, the next question which arises for consideration before this Court is as to
whether the contract was sham, ingeniune and camouflage as contended by the AR for the
petitioner. It is by now well settled that if the industrial adjudicator finds the contract between the
principal employer and the contractor to be a sham, nominal and a camouflage to deny employment
benefits to the employee, it can grant relief to the employee by holding that the workman is the
direct employee of the principal employer. In (2009) 13 SCC titled as International Airport
Authority of India Vs. International Air Cargo Workers Union and Anr., it has been held by
the Hon’ble Apex Court as under:
“36. But where there is no abolition of contract labour under section 10 of CLRA Act, but
the contract labour contend that the contract between principal employer and contractor is
sham and nominal, the remedy is purely under the ID Act. The principles in Gujarat
Electricity Board continue to govern the issue. The remedy of the workmen is to approach
the industrial adjudicator for an adjudication of their dispute that they are the direct
employees of the principle employer and the agreement is sham, nominal and merely a
camouflage, even when there is no order under section 10(1) of CLRA Act.
37. The industrial adjudicator can grant the relief sought if it finds that contract between
principal employer and the contractor is sham, nominal and merely a camouflage to deny
employment benefits to the employer and that there is in fact a direct employment, by
applying tests like: who pays the salary; who has the power to remove/dismiss from service
or initiate disciplinary action; who can tell the employee the way in which the work should
be done, in short who has direction and control over the employee. But where there is no
notification under section 10 of the CLRA Act and where it is not proved in the industrial
adjudication that the contract was sham/nominal and camouflage, then the question of
directing the principal employer to absorb or regularize the services of the contract labour
does not arise.
In the aforesaid judgment, the Hon’ble Supreme Court also explained the terms “control”
and “supervision” which reads as under:
“38.The tests that are applied to find out whether a person is an employee or an independent
contractor may not automatically apply in finding out whether the contract labour
agreement is a sham, nominal and is a mere camouflage. For example, if the contract is for
supply of labour, necessarily, the labour supplied by the contractor will work under the
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directions, supervision and control of the principal employer but that would not make the
worker a direct employee of the principal employer, if the salary is paid by contractor, if the
right to regulate employment is with the contractor, and the ultimate supervision and control
lies with the contractor.
39. The principal employer only controls and directs the work to be done by a contract
labour, when such labour is assigned/allotted/sent to him. But it is the contractor as
employer, who chooses whether the worker is to be assigned/allotted to the principal
employer or used otherwise. In short worker being the employee of the contractor, the
ultimate supervision and control lies with the contractor as he decides where the employee
will work and how long he will work and subject to what conditions. Only when the
contractor assigns/sends the worker to work under the principal employer, the worker works
under the supervision and control of the principal employer but that is secondary control.
The primary control is with the contractor.”
53.13……………… Merely because the contract labour work is under the supervision of
the officers of the principal employer, it cannot be taken as evidence of direct employment
under the principal employer.
54. …………………..Exercise of some control over the activities of contract labour while
they discharge their duties as labourers, is inevitable and such exercise is not sufficient to
hold that the contract labour will become the direct employees of the principle employer.”
15. In the back-ground of the aforesaid legal position, it was for the petitioner to prove
that he was working under the direct control & supervision of the official of the respondent no.1
company and the contract was sham, ingenuine and camouflage for all purposes. However, except
for the bald statement of the petitioner, there is no other evidence on record to suggest that he was
doing the work under the direct supervision of the officials of the company and that the contract
was sham, ingenuine, camouflage for all purposes. Moreover, no evidence has been led by the
petitioner to show that initially he was engaged by the respondent no.1 directly and thereafter his
services were illegally transferred and shown on the rolls of the contractor.
16. Hence, in view of the evidence led by the parties, it cannot be said that the petitioner
was the direct employee of the respondent no.1 and the contract between the company and
contractor is sham, ingenuine and camouflage for all purposes and as such it has been established
that there is no relationship of employer and employee between the petitioner and respondent no.1
company.
17. Since, it has been established on record that the petitioner was the employee of
respondent no.2 contractor, now, it has to be seen as to whether the services of the petitioner had
been illegally terminated by the respondent no.2. Before, I proceed further it is relevant to mention
here that after receiving the reference by this Court, notices were issued to both the respondents but
none appeared on behalf of the respondent no.2 Contractor despite having been served, hence, he
was proceeded against ex-parte vide order dated 19.4.2010. The petitioner in his claim petition as
well as in his affidavit by way of evidence has stated as PW-1 that he was engaged as safai
karamchari on 9.1.2004 and worked as such till 2.7.2007. He also tendered in evidence the copy of
reply dated 13.9.2007, Ex. PA, filed by respondent no.2 before the Labour-cum-Conciliation
Officer to the demand notice raised by him wherein the respondent no.2 had admitted that the
petitioner was on their muster roll w.e.f. 9.6.2004 till 30.6.2007 with a break in service w.e.f.
3.5.2007 to 13.5.2007. Therefore, from the perusal of the aforesaid reply of respondent no.2 Ex.
PA, it has become clear that the petitioner had completed 240 days in twelve calendar months
preceding his termination. Hence, before terminating the services of the petitioner, it was
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incumbent upon the respondent no.2 to have complied with the provisions of section 25-F of the
Act which lay down certain conditions precedent to the retrenchment of a workman (workmen) and
requires the employer to comply with those conditions as per clauses (a) to (c) which are mandatory
in nature. It has been held by our own Hon’ble High Court in Latest HLJ 2007 (HP) 776 titled as
State of Himachal Pradesh Vs. Sohan Lal that the settled law in counting 240 days is that the
same has to be calculated preceding the date of retrenchment during twelve calendar months and
not a year. The relevant extract of the aforesaid judgment is reproduced as under:
“2. I have perused the record and heard the parties. The Labour Court has come to the right
conclusion that the workman could not be retrenched without complying with Section 25-F
of the Industrial Disputes Act, 1947. Though the petitioner-State has place on record the
copy of man-days to substantiate its plea that the workman has not completed 240 days
preceding the date of his retrenchment. The settled law for counting 240 days is that the
same has to be calculated preceding the date of retrenchment during 12 calendar months and
not a year.”
In 2010 (5) SCC 497 titled as Anoop Sharma Vs. Executive Engineer, Public Health
division no.1, Panipat (Haryana), the Hon’ble Supreme Court has held that the termination of the
services of an employee by way of retrenchment without complying with the provisions of section
25- F of the Act is a nullity. The relevant extract of aforesaid judgment is reproduced as under:
“16. An analysis of the above reproduced provisions shows that no workman employed in
any industry who has been in continuous service for not less than one year under an
employer can be retrenched by that employer until the conditions enumerated in Clauses (a)
and (b) of Section 25-F of the Act are satisfied. In terms of Clause (a), the employer is
required to give to the workman one month’s notice in writing indicating the reasons for
retrenchment or pay him wages in lieu of the notice. Clause (b) casts a duty upon the
employer to pay to the workman at the time of retrenchment, compensation equivalent to
fifteen days’ average pay for every completed year of continuous service or any part thereof
in excess of six months.
17. This Court has repeatedly held that Section 25-F(a) and (b) of the Act is mandatory and
non-compliance thereof renders the retrenchment of an employee nullity……………..”
18. Therefore, in view of the unrebutted testimony of the petitioner and also in view of the
reply of respondent no.2 Ex. PA, to the demand notice, it has been established that the petitioner
had worked continuously for more than 240 days in twelve calendar months preceding his
termination as such the respondent no.2 was under the legal obligation to comply with the
provisions of the section 25-F of the Industrial Disputes Act before terminating his services. But,
no such compliance was made by the respondent no.2 contractor, hence, there is violation of
section 25-F of the Act, on the part of respondent no.2 contractor. As a result, the termination of
petitioner w.e.f. 2.7.2007 is not sustainable in the eyes of law and is hereby set aside. Accordingly,
this issue is decided in favour of petitioner and against respondent no.2 contractor.
Issue no. 2.
19. Since, I have held under issue no. 1 above, that the termination of the services of the
petitioner w.e.f. 2.7.2007 by respondent no.2 without complying with the provisions of the Act is
not legal and justified, hence, the question arises as to what service benefits, the petitioner is
entitled. It is by now well settled that if the termination of employee is found to be illegal, the relief
by way of reinstatement with back-wages is not automatic. The Hon’ble Supreme Court in Santosh
Kumar Seal and others reported in 2010 LLR 677: 2010 III CLR 17 SC, has held that relief by
3362
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way of reinstatement with back wages is not automatic even if termination of an employee is found
to be illegal or is in contravention of the prescribed procedure and that mandatory compensation in
lieu of reinstatement and back wages in cases of such nature may be appropriate.
20. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC
327, the Hon’ble Supreme Court has held that:
“It is true that the earlier view of this Court articulated in many decisions reflected the legal
position that if the termination of an employee was found to be illegal, the relief of
reinstatement with full back wages would ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a long line of cases, this Court has consistently
taken the view that relief by way of reinstatement with back wages is not automatic and
maybe wholly inappropriate in a given fact situation even though the termination of an
employee is in contravention of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice."
21. In the present case, even though the termination of the petitioner is held to be illegal
but his reinstatement will not be appropriate relief in view of the fact that the contract between
respondent no.1 and respondent no.2 had been terminated by the company vide letter Ex. RF and
thereafter, respondent no.1 company has allotted the work of housekeeping to M/s Silver Star
Industries and Allied Services, Chandigarh by executing an agreement. Therefore, in such a
situation, it would not be appropriate to make the order of reinstatement in the present case. Hence,
taking into account all the facts and circumstances of the case, the ends of justice would be met, if
the lump sum compensation in lieu of reinstatement and back-wages is awarded to the petitioner.
Therefore, in my view the petitioner is entitled to receive a suitable, appropriate, just and equitable
compensation from the respondent no.2 Contractor and keeping in view the facts and circumstances
of the case, it would be quite reasonable and justified if lump sum compensation of ` 25,000/-
(`Twenty Five Thousand only) is awarded to the petitioner instead of reinstatement. Consequently,
this issue is decided in favour of the petitioner and against respondent no.2 Contractor.
Issue no. 3.
22. 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 findings on the aforesaid issues, the claim of the petitioner is partly
allowed and as such the respondent no.2 Contractor is directed to pay ` 25,000/- (` Twenty Five
Thousand only) as lump sum compensation to the petitioner within three months from today failing
which the same shall carry interest @ 9% per annum from the date of publication of this award.
The reference is answered accordingly. Let a copy of this award be sent to the appropriate
government for publication in official gazette. File, after completion be consigned to records.
Announced in the open Court today on this 4th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
Application No.
:
92 of 2014.
Instituted on.
:
4.12.2014.
Decided on
:
17.6.2016.
Balbir Singh S/o Shri Devi Ram R/o VPO Himri, Tehsil Sunni, District Shimla, HP.
. .Petitioner.
Vs.
1. The Executive Engineer, HPPWD Division Kumarsain, Tehsil Kumarsain, District
Shimla, HP.
2. The Executive Engineer, HPPWD, Division Shimla (Rural) at Dhami, Sub Tehsil
Dhami, District Shimla, HP.
3. The Sub Divisional Officer, HPPWD, Sub Division, Jalog, Tehsil Sunni, District
Shimla, HP.
4. The Sub Divisional Officer, HPPWD, Sub Division, Sunni, Tehsil Sunni, District
Shimla, HP.
...Respondent
Claim petition on behalf of the petitioner in terms of reference no. 15 of 2004.
For petitioner
:
Shri Neel Kamal Sood, Advocate.
For respondent
:
Shri H.N Kashyap, ADA.
ORDER/AWARD
Briefly, the case of the petitioner is that initially w.e.f. 1.4.1991, he was engaged as beldar
on daily wages basis by the respondents department in the office of respondent no.2, where he
worked w.e.f. 1.4.1991 till 31.12.1997 and thereafter, his services were ordered to be transferred to
the office of respondent no.3 and he joined on 1.1.1998 but on 8.5.1998, the services of the
petitioner had been terminated by the respondents in an illegal manner. The seniority of daily
waged employees is maintained at Divisional level and the services of daily waged employee can
be transferred from one Sub Division to another, under the same Division keeping in view the rules
and guidelines meant for such workers. It is further stated that the petitioner kept on visiting the
offices of the respondents department and made various requests for his re-engagement but his
services had not been re-engaged despite the fact that juniors/similarly situated persons have been
retained. The petitioner had completed 240 days in each calendar year but his services had been
terminated without serving prior notice upon him. Thereafter, the petitioner approached the
Administrative Tribunal and filed OA no. 1254/1999 which was dismissed on 25.3.2002 on the
point of jurisdiction and then the petitioner filed a demand notice before the Labour & Conciliation
Officer Shimla but due to unreasoned attitude of the respondents, the conciliation failed and the
appropriate government has referred the dispute for adjudication which reads as under:
“Whether the termination of services of Shri Balbir Singh S/o Shri Devi Ram, daily
wages beldar by the Executive Engineer, HPPWD Kumarsain, District Shimla w.e.f.
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8.5.1998 without complying with the provisions of the Industrial Disputes Act, 1947
and whereas junior to him are retained as alleged by the workman is proper and
justified? If not, what relief of service benefits the above aggrieved workman is
entitled to?”
The petitioner had put in more than 7 years of service w.e.f. 1.4.1991 till 8.5.1998 and was
expecting for his regularization as per the policy of the state government but his services were
terminated on 8th May, 1998 without complying with the well settled provision of law and even
there are so many persons juniors to the petitioner namely Khem Raj, Nirma Dass etc. (as
mentioned in para (ii) of the claim petition), who are still continuing with the respondents
department. It is further stated that the petitioner had earlier filed a claim petition before this Court
in June, 2004 registered as Reference no. 15/2004 which was dismissed on 20.6.2009 and thereafter
a writ petition had been filed by the petitioner i.e CWP No. 2565/2009 before the Hon’ble High
Court of HP which was decided against the petitioner vide order dated 3.7.2012, and then the
petitioner filed LPA no. 527 of 2012, which was decided on 20.10.2014 wherein the Hon’ble High
Court had permitted the petitioner to approach the Labour Court afresh as prayed for. Thereafter,
the present application has been filed by the petitioner with a prayer for his re-instatement with all
the consequential service benefits.
2.
By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections have been taken qua maintainability and that no cause of action has accrued
in favour of the petitioner in any manner. On merits, it has been denied that initially the petitioner
was engaged on daily wage basis w.e.f. 1.4.1991 with the respondent no.2 and that he worked
w.e.f. 1.4.1991 till 31.12.1997. The services of the petitioner had been engaged on daily wage basis
for seasonal work as per the availability of work and funds and upon completion of his services, he
stood disengaged orally as he failed to fulfill the legal requirements of section 25-B of the Act. It is
asserted that the petitioner was engaged only during November, 1997 and he never remained as
continuous worker and had not completed 240 days in any year. It is denied that after the
disengagement of the petitioner, his juniors have been retained and fresh persons were being
engaged by the department from time to time. The petitioner had abandoned the job at his own and
he never approached the department for his reengagement. The respondents prayed for the
dismissal of the claim petition.
3.
By filing rejoinder, the petitioner reaffirmed his allegations by denying those of the
respondents.
4. Pleadings of the parties gave rise to the following issues which were struck on
18.11.2015.
5. Whether the termination of the services of the petitioner w.e.f. 8.5.1998, is in violation
of the provisions of the Industrial Disputes Act, 1947 as alleged?
...OPP.
6.
If issue no.1 is proved in affirmative to what relief of service benefits the petitioner is
entitled to?
...OPP.
7. Whether the petition is not maintainable as alleged?
...OPR.
8. Whether there is no cause of action in favour of the petitioner as alleged?
...OPR.
9. Relief.
5. Besides having heard the learned counsel for the parties, I have also gone through the
record of the case carefully.
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6.
For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to reinstatement with seniority and continuity
w.e.f. 8.5.1998 but without back-wages.
Issue no.3
No.
Issue no.4
No.
Relief.
Petition allowed per operative part of award/order.
Reasons for findings
Issue no.1 .
7. The learned counsel for the petitioner has argued with vehemence that the services of
the petitioner had been terminated illegally without following the mandatory provisions of the Act.
He further contended that since, the petitioner had completed 240 days in each calendar year, his
termination without notice and compensation is against the provisions of the Act and even junior to
him are still working with the respondents and fresh persons have been engaged in violation of the
provisions of section 25-G and 25-H of the Act.
8. On the other hand, Ld. ADA for respondents contended that the services of the
petitioner had been engaged for specific work and on the completion of said work, his services
stood automatically came to an end. He further contended that the petitioner had never completed
240 days in any calendar year and no junior to him had been retained/engaged by the respondents
and even the petitioner himself is responsible for losing his job as he left the work at his own
without any intimation to the department.
9.
To prove his case, the petitioner himself appeared into the witness box as PW- 1 and
deposed that he was engaged as beldar in HPPWD Division Kumarsain on 1.4.1991 and worked till
December, 1997 and thereafter he was sent to Sub Division Sunni where he worked w.e.f. 1.1.1998
to 6.5.1998. He had completed 240 days in each calendar year. His services were terminated
without serving any notice as required under the law and without payment of any compensation.
His juniors have been retained. Vide judgment Ex. PW-1A he was given liberty to approach this
Court afresh and Ex. PW-1B is the copy of order passed in OA decided on 25.3.2002 and thereafter
he raised demand notice and the reference was decided against him by this Court vide award Ex.
PW-1/C. The copy of judgment passed by the Hon’ble High Court in writ petition is Ex, PW-1/D.
Thereafter, he filed LPA no. 527/2012 which was decided on 20.10.2014. He prayed for his re-
instatement in service including all consequential benefits. In cross-examination, he denied that he
was engaged in the year, 1997/1998. He further denied that he had not completed 240 days in each
calendar year and that he had abandoned the job voluntarily. He admitted that he had worked for 34
days in 1997 and 137 days in 1998. He denied that he had not approached the department for his re-
engagement and that no juniors were retained by the department.
10. PW-2 Shri Nikka Ram has stated that as per the record the petitioner was initially
engaged in the year, 1993 and the information supplied under the RTI Act Ex. PW-2/A is correct
and Ex. PW-2/B is the list of the date of engagement of the persons junior to the petitioner. In
cross-examination, he admitted that the persons mentioned in the list Ex. PW-2/B have been
regularized as they have fulfilled all the criteria. He admitted that the services of the petitioner were
never taken after June, 1993 and before November, 1997.
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11. On the other hand, the respondents has examined RW-1 Shri Rajeev Shaunak, who
tendered in evidence his affidavit Ex. RW-1/A, wherein he reiterated almost all the averments as
stated in the reply. He also tendered in evidence mandays chart of petitioner Ex. RW-1/B, mandays
chart of Tikkam Dass, Ex. RW-1/C, mandays chart of Narain Singh Ex. RW-1/D, mandays chart of
Laiq Ram, Ex. RW-1/E, mandays chart of Khem Raj Ex. RW-1/F, mandays chart of Khem Chand
Ex. RW-1/G, mandays chart of Nirma Dass Ex. RW-1/H, copies of orders passed by
Administrative Tribunal Ex. RW-1/J & RW-1/K, copy of order dated 27.12.1999 Ex. RW-1/L,
copy of order dated 26.6.2009 Ex. RW-1/M, copy of order dated 3.7.2012 passed by the Hon’ble
High Court Ex. RW-1/N and copy of order passed in LPA no. 527/2012 Ex. RW-1/O. In cross-
examination, he denied that the petitioner had worked with the department in the year, 1991. He
admitted that neither any notice of termination was served upon the petitioner nor any
compensation in lieu thereof was paid to him. He admitted that S/Shri Inder Dass, Narain Singh,
Laiq Ram, Khem Chand, Khem Raj and Nirma Dass were appointed in the year, 1997 and that the
persons shown in Ex. RW-1/C to Ex. RW-1/H were appointed in the year, 1997. He also admitted
that all the juniors as per Ex. PX have been regularized as per government policy.
12. Before, I proceed further, it is important to mention here that earlier the petitioner had
filed a claim petition before this Court pursuant to reference sent by the appropriate government
which was dismissed by this Court vide award dated 20.6.2009, the copy of which is Ex. PW-1/C.
Thereafter, the petitioner filed a Civil Writ Petition no. 2565 of 2009, before the Hon’ble, High
Court which was also dismissed vide order dated 3.7.2012, the copy of which is Ex. PW-1/D.
Admittedly, then the petitioner filed LPA no. 527 of 2012 before the Hon’ble High Court of HP
which was disposed of on 20.10.2014, wherein the Hon’ble High Court has observed as follows:
“3. Keeping in view the dispute involved read with the fact that the laws applicable to
the workmen are beneficial legislations, we deem it proper to permit the appellant-
writ petitioner to withdraw the appeal as well as the writ petition with liberty to
approach the Labour Court afresh enabling him to take all grounds, which are as
weapon in his armoury.
4. It goes without saying that the time spent right from the Labour Court till today
shall not come in the way of the appellant-writ petitioner provided he approaches the
Labour Court within one month from today.
5. Having said so, the appeal as well as the writ petition is dismissed as withdrawn
with liberty as prayed for. It is made clear that in the given circumstances, the award
made by the Labour Court and judgment made by the Writ Court lose efficacy.
Consequent upon the order passed by the Hon’ble High Court (supra), the petitioner has
filed the present petition.
13. I have closely scrutinized the entire evidence on record and from the closer scrutiny
thereof, it has become clear that the petitioner had worked as daily waged beldar with the
respondents department. RW-1 Shri Rajeev Shaunak has placed on record the mandays chart of the
petitioner Ex. RW-1/B which goes to show that in the year 1997 the petitioner had worked only for
34 days and in the year, he worked for 137 days. No doubt the petitioner has stated as PW-1 that he
was engaged as beldar in HPPWD Division Kumarsain, Sub Division Jalog on 1.4.1991 but he has
failed to place on record any material which could go to show that the petitioner was engaged on
1.4.1991. At the same time, the petitioner has examined PW-2 Shri Nikka Ram, Clerk from the
office of HPPWD Kumarsain, who has stated on the basis of record that initially the petitioner was
engaged in the year, 1993. This witness has also placed on record the certified copies of muster roll
Ex. PW-2/A supplied under RTI Act. The perusal of Ex. PW-2/A goes to show that initially the
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muster roll had been issued in favour of the petitioner for the month of May, 1993 which fact has
also been admitted by RW-1 in his cross-examination that the petitioner was engaged in the year,
1993. RW-1 also admitted in his affidavit Ex. RW-1/A, the petitioner had worked with Sub
Division Jalog for 22 and 18 days during the months of May & June, 1993 respectively.Thus, from
the oral as well as documentary evidence, on record, it has been established that initially the
services of the petitioner had been engaged by the respondents department in the month of May,
1993. The case of the petitioner is also that he had worked with the respondent till December, 1997
and completed 240 working days in every calendar year and also in twelve calendar months
preceding his termination but when regard is given to entire evidence on record, except for the bald
statement of the petitioner there is nothing on record which could show that the petitioner had
completed 240 working days in twelve calendar months preceding his termination. It is by now
well settled that the burden of proof lies on the workman to show that he had worked continuously
for 240 days in twelve calendar months preceding his termination. In 2009 (120) FLR 1007 in case
titled as Relip Nagarpalika Vs. Babuji Gabhaji Thakore and others, the Hon’ble Supreme Court
has held as under:
“The burden of proof lies on the workman to show that he had worked continuously for
240 days for the preceding one year and it is for the workman to adduce evidence apart
from examining himself to prove the factum of being in employment of the employer.”
14. In AIR 2006 S.C. 110 case titled as Surindernagar District Panchyat V/s Dayabhai
Amar Singh, the Hon’ble Supreme Court has held that:-
“19………… In the light of the aforesaid, it was necessary for the workman to produce
the relevant material to prove that he has actually worked with the employer for not less
than 240 days during the period twelve calendar months preceding the date of
termination. What we find is that apart from the oral evidence the workman has not
produced any evidence to prove the fact that he has worked for 240 days. No proof of
receipt of salary or wages or any record or order in that regard was produced; no co-
worker was examined; muster roll produced by the employer has not been contradicted. It
is improbable that workman who claimed to have worked with the appellant for such a
long period would not possess any documentary evidence to prove nature of his
engagement and the period of work he had undertaken with his employer. Therefore, we
are of the opinion that the workman has failed to discharge his burden that he was in
employment for 240 days during the preceding 12 months of the date of termination of
his service………………………………”
A bare perusal of the extract of the judgment produced, hereinabove, shows that the burden
to prove completion of 240 days service lies on the workman and this burden is discharged by the
workman stepping in the witness box and adducing cogent evidence. However, in the instant case,
the petitioner has failed to prove on record that he had put in 240 days in twelve calendar months
preceding his termination.
15. From the perusal of mandays chart, Ex. RW-1/B, it is abundantly clear that the
petitioner had not completed 240 working days in the calendar year preceding his termination.
Hence, the case of the petitioner does not fall under section 25-F of the Industrial Disputes Act,
1947 and as such no protection of section 25-F can be granted to the petitioner. Thus, having regard
to the entire evidence on record and on the strength of the above cited rulings, it can safely be
concluded that the petitioner has failed to prove on record that he has completed 240 working days
in twelve calendar months preceding his termination.
16. The respondents have also taken a plea that the petitioner had voluntarily left the job
from the department. However, except for the bald statement of RW-1, there is nothing on record
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which could go to show that the petitioner had abandoned the job at his own. Therefore, in the
absence of any evidence on record it cannot be said that the petitioner had abandoned the job on his
own.
17. The learned counsel for the petitioner next contended that the persons junior to the
petitioner have been retained and fresh persons have been engaged after the termination of the
services of the petitioner as such there is a breach of provisions of sections25-G and 25-H of the
Act. It has been held by the Hon’ble Supreme Court in a series of judgments that it is not necessary
for the workman to complete 240 days during preceding twelve calendar months for taking the
benefits of section 25-G and 25-H of the Act. In the decision titled as Harjinder Singh vs. Punjab
State Warehousing Corporation, (2010) 3 SCC 192, it was held by the Hon’ble Apex Court that
for attracting the applicability of Section 25G of the Act, the workman is not required to prove that
he had worked for a period of 240 days during twelve calendar months preceding the termination of
his services and it is sufficient for him to plead and prove that while effecting retrenchment, the
employer violated the rule of ‘last come first go’ without any tangible reason. In the present case, it
has been duly proved on record by the petitioner that the respondents had retained his juniors and
engaged fresh persons after the termination of his services in violation of the provisions of section
25-G and 25-H of the Act. As observed earlier, from the perusal of the entire evidence on record, it
is clear that the petitioner was initially engaged in the year, 1993. From the perusal of the list Ex.
PW-2/B, it is revealed that 110 persons were engaged as beldars in Kumarsain Division w.e.f.
1.1.1997 and the services of these persons have been regularized as admitted by PW-2, in his cross-
examination. RW-1 also admitted that S/Shri S/Shri Inder Dass, Narain Singh, Liaq Ram, Khem
Chand, Khem Raj and Niram Dass as well as the persons shown in Ex. RW- 1/C to Ex. RW-1/H
were appointed in the year, 1997. Furthermore, list Ex. PX is the detail of daily paid beldars
engaged w.e.f. 1.1.1997 in respect of Kumarsain Division and in cross-examination RW-1 admitted
that the aforesaid list Ex. PX is correct and he further admitted that all the juniors mentioned in Ex.
PX have been regularized.
18. Therefore, from the perusal of the lists Ex. PW-2/B and Ex. PX, and having regard to
entire evidence on record, I have no hesitation in coming to the conclusion that after the
termination of the services of the petitioner, fresh persons have been engaged and juniors have been
retained and regularized by the respondents whereas no opportunity was given to the petitioner at
any point of time for re-employment before the engagement of the fresh persons and as such the
termination of services of the petitioner by the respondents without complying with the provisions
of the Act, is improper and unjustified as the respondent has violated the principle of “first come
last go” thereby violating the provisions of sections 25-G & H of the Act. Accordingly, issue no.1
is decided in favour of petitioner and against the respondents.
Issue no. 2.
19. Since I have held under issue no.1 above that the termination of services of the
petitioner by the respondents without following the provisions of the Act is improper, illegal and
unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and
continuity from the date of his illegal termination i.e w.e.f. 8.5.1998.
20. Now, the next question which arises for consideration, before this Court is as to
whether the petitioner is entitled to full back wages as contended by the learned counsel for the
petitioner. In (2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim
Mirza, the Hon’ble Supreme Court has held that once the order of termination of services of an
employee is set-aside, ordinarily, the relief of reinstatement is available to him. However, the
entitlement of an employee to get reinstated does not necessarily result in payment of full or partial
back-wages, which is independent of reinstatement. It has further been held by the Hon’ble
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Supreme Court in 2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full
back wages cannot be granted mechanically, upon an order of termination be declared illegal. It is
further held that reinstatement must not be accompanied by payment of full back wages even for
the period when the workman remained out of service and contributed little or nothing to the
Industry.
21. Moreover, the petitioner was under an obligation to prove by leading cogent evidence
that he was not gainfully employed after the termination of his services. The initial burden is on the
workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex
Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and
another Vs. S.C Sharma that :
“16…………..When, the question of determining the entitlement of a person to back-wages
is concerned, the employee has to show that he was not gainfully employed. The initial
burden is on him. After and if he places materials in that regard, the employer can bring on
record materials to rebut the claim…………..”
22. In the present case, the petitioner has failed to discharge his burden by placing any
material on record that he was not gainfully employed after his termination/disengagement.
Therefore, in view of the entire evidence, on record, coupled with the rulings (supra), I have no
hesitation in holding that the petitioner is not entitled to any back-wages. Accordingly, issue no.2 is
partly decided in favour of the petitioner and against the respondent.
Issue no.3.
23. In support of this issue, no evidence has been led by the respondents. Moreover, I find
nothing wrong with this petition which is perfectly maintainable. Accordingly, issue no.3 is decided
in favour of petitioner and against the respondent.
Issue no.4.
24. In support of this issue, the learned ADA has argued that since the claim of the
petitioner has earlier been dismissed by this Court vide award dated 20.6.2009, hence, there is no
cause of action in his favour. However, as the petitioner has filed the present petition consequent
upon the order passed by the Hon’ble High Court of HP in LPA no. 527 of 2102, wherein, he had
been directed to approach this Court afresh, hence, it cannot be said that there is no cause of action
in favour of the petitioner. Hence, this issue is decided in favour of the petitioner and against the
respondents.
Relief.
As a sequel to my above discussion and findings on issue no.1 to 4, the claim of the
petitioner succeeds and is hereby partly allowed and the petitioner is ordered to be reinstated in
service forthwith with seniority and continuity from the date of his illegal termination i.e w.e.f.
8.5.1998. However the petitioner is not entitled to back wages. Let a copy of this award/order be
sent to the appropriate government for publication in official gazette. File, after completion, be
consigned to records.
Announced in the open Court today on this 17th Day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL
TRIBUNAL-CUM-LABOUR COURT, SHIMLA, (H.P).
App. No.
:
6 of 2012.
Instituted on.
:
18.1.2012.
Decided on
:
29.6.2016.
Vinod Kumar S/o Shri Sohan Singh Thakur R/o Village Trambla, P.O Longni, Tehsil
Sarkaghat District Mandi HP C/o Om Dutt Sharma, VPO Taksal, Tehsil Kasauli, District Solan,
HP.
.. Petitioner
Vs.
General Manager/Factory Manager, Numeric Power System Ltd., Sector-II, Parwanoo,
District Solan, HP.
...Respondent
Claim petition under Section 2-A of the Industrial Disputes Act
For petitioner
:
Shri Niranjan Verma, Advocate.
For respondent
:
Shri Rahul Mahajan, Advocate.
ORDER/AWARD
In nutshell the case of the petitioner is that he had been working as an operator with the
respondent since 20.9.2005 and was drawing monthly salary of ` 5900/-. The petitioner was
working to the entire satisfaction of the respondent till 2.5.2008 and his services had been
terminated illegally without complying with the provisions of the Industrial Disputes Act, 1947
(hereinafter referred to as Act) w.e.f. 3.5.2008 and that too without affording any opportunity of
being heard to him despite the fact that his juniors have been retained by the respondent. It is
further stated that neither any notice was served nor any enquiry was conducted against the
petitioner as he had completed 240 days in a calendar year and also in preceding years. It is also
stated that the petitioner time and again requested/represented the respondent to set aside the illegal
orders and to reinstate him in service but all in vain, hence, he filed the demand notice under
section 2-A of the Act before the Labour –cum- Conciliation Officer which is still pending from
7.2.2010. Against this back-drop a prayer has been made for his reinstatement in service along-with
all consequential service benefits including backwages.
2. By filing reply, the respondent had contested the claim of the petitioner wherein
preliminary objections had been taken qua maintainability, there exists no industrial dispute as
defined under section 2-k and that the petitioner is not a workman. On merits, it has been asserted
that the petitioner was working as an operator with the respondent and drawing salary of `5900/-
per month. It is denied that the services of the petitioner had been illegally and arbitrarily
terminated w.e.f. 3.5.2008. In fact, the petitioner failed to report on duty w.e.f. 3.5.2008 and
thereafter on 6.5.2008, he submitted his resignation, which was accepted by the respondent, hence,
the relationship of employee and employer between the petitioner and respondent came to an end
w.e.f. 6.5.2008. Thus, there exists no industrial dispute as the petitioner is not a workman. Since,
the petitioner himself tendered his resignation on 6.5.2008, hence, there is no question of any
opportunity of being heard given to him or violation of principles of natural justice. The respondent
prayed for the dismissal of the petition.
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3. Rejoinder not filed. Pleadings of the parties gave rise to the following issues which
were struck on 26.6.2013.
1. Whether the services of the petitioner were terminated arbitrarily without notice and
enquiry in illegal and unjustified manner as alleged?
... OPP.
2.
If issue no.1 is proved in affirmative to what service benefits, the petitioner is entitled
to?
...OPP.
3. Whether this petition is neither competent nor maintainable as alleged in preliminary
objections no. 1 to 4?
...OPR.
4. Relief.
4.
Besides having heard the learned counsel for the parties, I have also gone through the
record of the case carefully.
5. For the reasons to be recorded hereinafter while discussing issues for determination,
my findings on the aforesaid issues are as under.
Issue no.1
Yes.
Issue no.2
Entitled to lump sum compensation.
Issue no.3
No.
Relief.
Reference answered in favour of the petitioner and
against the respondent per operative part of award.
Reasons for findings.
Issues no.1.
6. Ld. Counsel for petitioner contended that the services of the petitioner have been
terminated illegally without following the mandatory provisions of the Act. He further contended
that before terminating the services of the petitioner, neither any notice was issued to him nor any
enquiry was conducted against him and since the petitioner had completed 240 days in each
calendar year, his termination without issuance of any notice and without payment of compensation
is against the provisions of the Act.
7. On the other hand, learned counsel for the respondent contended that the services of
the petitioner have never been terminated by the respondent, who himself tendered his resignation
which was duly accepted by the respondent. He further contended that all the outstanding dues of
the petitioner have been paid to him.
8.
To prove his case, the petitioner examined himself as PW-1 and deposed that he was
appointed as an operator by the respondent on 20.9.2005 on monthly wages of ` 5900/- and he was
terminated from service w.e.f. 3.5.2008 without any notice, compensation and enquiry whereas his
juniors were retained by the company. In every calendar year, he had completed 240 days and he
was terminated illegally. The copy of demand notice is Ex. PW-1/A and postal receipt of which is
Ex. PW- 1/B and when no conciliation took place, he requested the Conciliation Officer vide Ex.
PW-1/C to send the same to this Court. He is unemployed and requested the respondent for his re-
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engagement but of no avail. Relieving certificate Ex. PW-1/D had been given to him after two
years. He had not tendered his resignation. His behavior and performance was satisfactory vide Ex.
PW-1/E and as such he may be reinstated in service with all consequential benefits including back-
wages etc. In crossexamination, he denied that he was engaged as store assistant. He admitted that
he was engaged on 20.9.2005. He admitted that vide Ex. R-1, he was engaged as store assistant. He
denied that resignation letter mark X had been tendered by him. He admitted that in Ex. PW-1/D, it
was mentioned that he had tendered his resignation but volunteered that the same had been written
by the company. He admitted that he had received cheque, the copy of which is Ex. R-2 and E-mail
Ex. R-3. He admitted that presently he is doing the job and getting ` 7,000/- per month as salary.
9. Before, I proceed further, it is important to mention here that the evidence of the
petitioner was closed on 3.7.2014 and thereafter the case was being listed for the evidence of the
respondent but despite affording various opportunities, the respondent failed to lead any evidence,
hence, vide order dated 12.4.2016, the evidence of the respondent was closed by the order of the
Court.
10. I have considered the respective contentions of the learned counsel for parties and also
scrutinized the record of the case minutely.
11. After the closer scrutiny of the record of the case, it has become clear that the petitioner
was engaged on 1.9.2005 by the respondent and was working as an operator and drawing salary of
`5900/- per month and he worked as such till 3.5.2008. The only stand which has been taken by the
respondent is to the effect that the petitioner had failed to report for duties w.e.f. 3.5.2008 and
thereafter on 6.5.2008, he submitted his resignation. Therefore, it was for the respondent to prove
that the petitioner had tendered his resignation on 6.5.2008. However, to prove this fact, no
evidence has been led by the respondent. The respondent has only placed on record, the
photocopies of the alleged resignation letter dated 6.5.2008, mark X letter dated 9.7.2010 allegedly
written by the petitioner mark Y, letter dated 14.7.2010 mark Z and letter dated 11.8.2010 allegedly
written by the respondent mark Z-1. The aforesaid letters were put to the petitioner in cross-
examination. However, the petitioner has categorically denied that he had written the resignation
letter mark X and letter dated 9.7.2010 mark Y. He also denied that the letters dated 14.7.2010 and
11.8.2010 mark Z and mark Z-1 were sent by the company to him. Therefore, in such a situation, it
was for the respondent to prove the aforesaid letters in accordance with law. However, as observed
earlier, no evidence has been led by the respondent to prove his case. Therefore, in the absence of
any evidence on record, it cannot be said that the petitioner had submitted his resignation on
6.5.2008 and that his services were never terminated by the respondent.
12. Admittedly, the petitioner had worked with the respondent continuously w.e.f. 1.9.2005
to 3.5.2008 which fact has also been mentioned by the respondent in the relieving order Ex. PW-
1/D. Therefore, it has become clear that the petitioner had completed more than 240 days in each
calendar year preceding his termination. It has not been explained by the respondent as to why the
relieving order Ex. PW-1/D was issued on 19.1.2010 when according to the respondent, the
petitioner had submitted his resignation on 6.5.2008. Moreover, in the relieving order Ex. PW-1/D,
it has been categorically mentioned that the petitioner has been relieved from his employment
consequent to his resignation and unsatisfactory behavior. Admittedly, neither any enquiry was
conducted nor any notice was issued to the petitioner regarding his unsatisfactory behavior. It is
settled legal proposition that a workman, against whom misconduct is alleged, cannot be dismissed
or discharged unless a proper domestic enquiry is held against him in respect of the alleged
misconduct. Even, if there is proved misconduct against the workman, he cannot be dis-charged or
dismissed from service unless he has been afforded reasonable opportunity of being heard before
initiating any action against him by the employer/respondent. Since, the petitioner had completed
240 days in twelve calendar months preceding his termination, a reasonable opportunity of being
3373
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heard should have been afforded to him and proper enquiry should have been held before
terminating his services. In D. K Yadav Vs. M/s J.M A Industries Ltd. as reported in 1993-1
Supreme Court Service Law Judgments -221, the Hon’ble Apex Court has held as under:
“Reasonable opportunity be given to the employee concerned to put forth his case and
proper enquiry be held before terminating his service.”
In a recent judgment of our Hon’ble High Court in ILR-XLV (VI) 938 titled as
Gurcharan Singh Deceased through his LR’s Vs. State of HP and ors. the Hon’ble High Court
has held that termination could not have been ordered without conducting any enquiry as the
workman had completed 240 days and was therefore entitled to the enquiry. The relevant portion of
the aforesaid judgment reads as under:
“8. The moot question is whether termination can be ordered without conducting any
inquiry? The answer is in the negative for the following reasons:
9.
……………………………………..
10. While going through the impugned award and the writ petition, one comes to an
inescapable conclusion that the termination of deceased Gurcharan Singh was made without
following the mandate of law.
11. ……………………………………..
12. …………………………………….
13. In the instant case, deceased Gurcharan Singh had completed 240 days in a calendar
year, as discussed and held by the Labour Court, after scanning the evidence, the inquiry
was required, not to speak of only issuance of the notice.
Since, the petitioner had completed 240 working days in each calendar year preceding his
termination, hence, before terminating his services, it was incumbent upon the respondent to have
conducted the enquiry regarding his alleged un-satisfactory behavior. Moreover, the provisions of
section 25-F of the Act lay down certain conditions precedent to the retrenchment of a workman
(workmen) and requires the employer to comply with those conditions as per clauses (a) to (c)
which are mandatory in nature. However, in the present case, the perusal of the record shows that
the respondent has failed to comply with the provisions of section 25-F of the Act. In (2015) 4
SCC 544, Mackinnon Mackenzie and Company Ltd., Vs. Mackinnon employees Union, the
Hon’bel Apex Court has held as under:
“34. ………………….The Industrial Court after examining the facts and evidence on
record has rightly answered the question of breach of Section 25F clause (b) in the negative
since no evidence has been produced by the respondent-Union to prove the same and further
no calculation is brought to our notice as to the amount received by way of retrenchment
compensation and also the actual amount sought to have been paid to the retrenched
workmen. Further, with regard to the provision of Section 25F clause (c), the appellant-
Company has not been able to produce cogent evidence that notice in the prescribed manner
has been served by it to the State Government prior to the retrenchment of the concerned
workmen. Therefore, we have to hold that the appellant-Company has not complied with
the conditions precedent to retrenchment as per Section 25F clauses (a) and (c) of the I.D.
Act which are mandatory in law.”
13. In the present case also the respondent had not complied with the conditions precedent
to the retrenchment as per section 25-F of the Act before terminating the services of the petitioner.
3374
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Hence, In view of the law laid down by the Hon’ble Supreme Court (supra) and my foregoing
observations, I have no hesitation in holding that the termination/disengagement of the services of
the petitioner w.e.f. 3.5.2008 by the respondent without complying with the provisions of the Act, is
illegal and unjustified. Accordingly, this issue is decided in favour of the petitioner and against the
respondent.
Issue No. 2
14. Since, I have held under issue no. 1 above, that the services of the petitioner were
terminated arbitrarily without notice and enquiry in illegal and unjustified manner by the
respondent, hence, the question arises as to what service benefits, the petitioner is entitled. It is by
now well settled that if the termination of employee is found to be illegal, the relief by way of
reinstatement with back-wages is not automatic. The Hon’ble Supreme Court in Santosh Kumar
Seal and others reported in 2010 LLR 677: 2010 III CLR 17 SC, has held that relief by way of
reinstatement with back wages is not automatic even if termination of an employee is found to be
illegal or is in contravention of the prescribed procedure and that mandatory compensation in lieu
of reinstatement and back wages in cases of such nature may be appropriate.
15. In Jagbir Singh Vs. Haryana State Agricultural Marketing Board (2009) 15 SCC
327, the Hon’ble Supreme Court has held that:
“It is true that the earlier view of this Court articulated in many decisions reflected the legal
position that if the termination of an employee was found to be illegal, the relief of
reinstatement with full back wages would ordinarily follow. However, in recent past, there
has been a shift in the legal position and in a long line of cases, this Court has consistently
taken the view that relief by way of reinstatement with back wages is not automatic and
maybe wholly inappropriate in a given fact situation even though the termination of an
employee is in contravention of the prescribed procedure. Compensation instead of
reinstatement has been held to meet the ends of justice."
16. In the present case, even though the termination of the petitioner is held to be illegal
but his reinstatement will not be appropriate relief as it has been stated at bar by the learned counsel
for the respondent that the respondent has closed its unit where the petitioner was working.
Therefore, in such a situation, it would not be appropriate to make the order of reinstatement in the
present case. Hence, taking into account all the facts and circumstances of the case, the ends of
justice would be met, if the lump sum compensation in lieu of reinstatement is awarded to the
petitioner. Therefore, in my view the petitioner is entitled to receive a suitable, appropriate, just and
equitable compensation from the respondent and keeping in view the facts and circumstances of the
case, it would be quite reasonable and justified if lump sum compensation of ` 50,000/- (` Fifty
thousand only) is awarded to the petitioner instead of reinstatement. Consequently, this issue is
decided in favour of the petitioner and against respondent.
Issue no.3.
17. In support of this issue, no evidence has been led by the respondent which could go to
show that this petition is neither competent nor maintainable. Hence, in the absence of any
evidence on record, this issue is decided in favour of the petitioner and against the respondent.
Relief.
As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the
petitioner succeeds and is hereby partly allowed with the result the respondent is directed to pay
3375
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` 50,000/- (` Fifty thousand only) as lump sum compensation to the petitioner within three months
from today failing which the same shall carry interest @ 9% per annum from the date of
publication of this order/award. Let a copy of this order/award be sent to the appropriate
government for publication in official gazette. File, after completion be consigned to records.
Announced in the open Court today on this 29th day of June, 2016.
(SUSHIL KUKREJA),
Presiding Judge,
Industrial Tribunal-cum-
Labour Court, Shimla.
_________
3.6.2016.
Present: Shri R.K Khidtta, Advocate for petitioner.
Shri Rahul Mahajan, Advocate for respondent.
At this stage an application under section 151 CPC has been filed by the
respondent/applicant for placing on record the settlement dated 29.4.2016 executed between the
petitioner union and respondent. The learned counsel for the petitioner/non-applicant admits the
execution of settlement dated 29.4.2016 between the parties.
Vide separate statement recorded today Shri Mata Ram Sharma, President of petitioner
union has stated that the union had entered into settlement with the management of M/s Mahale
Filters System India Pvt. Ltd. Parwanoo on 29.04.2016 in respect of the charter of demand raised
vide demand notice dated 18.09.2013, which was referred for adjudication to this Court and
registered as reference number 74 of 2014. He also placed on record the copy of settlement as Ex.
C-1n and its Hindi version as Ex. C-2. Similarly, Ms. Shilpi Wadhwa, Head (HR) of respondent
company also admitsthe aforesaid statement of Sh. Mata Ram Sharma, President of petitioner
union.
Therefore, in view of the statements of the parties, since a settlement has been executed
between the petitioner union and the respondent, the copy of which is placed on record as Ex. C-1
and its Hindi version as Ex. C-2, the present reference is answered in terms of aforesaid settlement
which shall form a part of the award. Let a copy of this award/order be sent to the appropriate
government for publication in the official gazette. File after completion, be consigned to records.
Announced:
3-6-2016
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
3376
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
App.89/2014
27.06.2016
Present: Petitioner with Shri A.K. Sharma, AR for the petitioner.
Shri Vikram Bhojia, Secretary with Shri J.J.Lal, AR for respondent.
At this stage, it has been stated by Shri Vikram Bhojia, Secretary for the respondent college
that the respondent is ready and willing to re-instate the petitioner in service as mazdoor along-with
seniority and continuity in the campus of Bhojia Cheritable trust at Village Bhud, Tehsil Baddi,
District Solan, HP. To this effect his statement recorded separately.
Vide separate statement, the petitioner also stated that he is also ready to work as a mazdoor
with the respondent along-with seniority and continuity in service.
Since, the parties have settled the matter before this Court amicably, hence the petition
filed under section 2-A of the Industrial Disputes Act, 2010 (amended) is disposed of in terms of
the aforesaid settlement. The statement of the parties shall form a part of this order. Let a copy of
this order be sent to the appropriate government for publication in the official gazette. File, after
completion, be consigned to records.
Announced
27.6.2016.
Sd/-
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
_________
App.90/2014
27.06.2016
Present: Petitioner with Shri A.K. Sharma, AR for the petitioner.
Shri Vikram Bhojia, Secretary with Shri J.J.Lal, AR for, respondent.
At this stage, it has been stated by Shri Vikram Bhojia, Secretary for the respondent college
that the respondent is ready and willing to re-instate the petitioner in service as mazdoor along-with
seniority and continuity in the campus of Bhojia Cheritable trust at Village Bhud, Tehsil Baddi,
District Solan, HP. To this effect his statement recorded separately.
Vide separate statement, the petitioner also stated that he is also ready to work as a mazdoor
with the respondent along-with seniority and continuity in service.
Since, the parties have settled the matter before this Court amicably, hence the petition filed
under section 2-A of the Industrial Disputes Act, 2010 (amended) is disposed of in terms of the
aforesaid settlement. The statement of the parties shall form a part of this order. Let a copy of this
3377
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order be sent to the appropriate government for publication in the official gazette. File, after
completion, be consigned to records.
Announced
27.6.2016.
Sd/-
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
___________
22.6.2016.
Present: None for the petitioner.
Shri Vijay Sharma, Advocate vice csl. for respondent.
Case called twice but none appeared on behalf of the petitioner. It is 10:55 AM. Be called
again.
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
____________
Case called again
Present: None for the petitioner.
Shri Vijay Sharma, Advocate vice csl. for respondent.
It is 12:50 PM case called again but none appeared on behalf of the petitioner. Be called
after lunch.
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
__________
Case called after lunch.
Present: None for the petitioner.
Shri Vijay Sharma, Advocate vice csl. for respondent.
It is 3:35 PM. Case called repeatedly in pre and post lunch sessions but none appeared on
behalf of the petitioner.
3378
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
For today this case was fixed for filing of claim but neither the petitioner nor his AR
appeared before this Court in order to file claim petition despite the fact that this case is being listed
for filing of claim from 24.8.2015 but till today the petitioner has failed to file any claim which
goes to show that he is not interested to pursue his case and to file claim. Hence, this Court is left
with no other alternative but to decide the reference on the basis of material whatsoever available
on the file. The following reference has been received from the appropriate government for
adjudication:
“Whether termination of services of Shri Ravinder Kumar S/o Shri Dayal Chand R/o
VPO Bhardi, Tehsil Kumarsain, District Shimla, HP w.e.f. 11.6.2014 by the Managing
Director/Occupier, TapanMultiventures (Automobile Division) Plot No. 14, 16 and 40-
47, Industrial Area Shoghi, District Shimla, HP without complying with the provisions
of the Industrial Disputes Act, 1947 as alleged by the workman, is legal and justified?
If not, to what relief of re-instatement, compensation and other service benefits the
above aggrieved workman is entitled to from the above employer/management ?”
As per reference received from the appropriate government, the petitioner has alleged
histermination of services by the respondent w.e.f. 11.6.2014 to be illegal and unjustified but the
petitioner has failed to file the claim petition and to lead evidence which could go to show that he
was illegally terminated by the respondent. Hence, in the absence of any claim petition/ evidence
on record, the reference is answered against the petitioner. Let a copy of this order/award be sent to
the appropriate government for publication in the official gazette. File, after completion, be
consigned to records.
Announced:
22.6.2016.
(SUSHIL KUKREJA),
Presiding Judge,
Labour Court, Shimla.
__________
c vnkyr Jh lqjs'k ifV;ky] lgk;d lekgrkZ izFke Js.kh] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0
fely ua0 % 18@2016
rkjh[k nk;j % 21&3&2016
muoku%&cohrk iq=h Jh nyhi flag] xkao o Mk0 ckjha] rglhy celu fLFkr VkS.kh nsoh] ftyk gehjiqj]
fg0 iz0A
cuke
vke turk
fo"k;%&izkFkZuk&i= cjk;s ntZ djus tUe iSnkbZ'k vUrxZr /kkjk 13¼3½ vf/kfu;e 1969-
izkfFkZu cohrk iq=h Jh nyhi flag] xkao o Mk0 ckjha] rglhy celu fLFkr VkS.kh nsoh] ftyk
gehjiqj] fg0 iz0 us bl dk;kZy; esa izkFkZuk&i= bl vk'k; ls is'k fd;k gS fd mldh tUe iSnkbZ'k
06&11&1983 dks xkao ckjha esa gqbZ gS ijUrq mlds tUe dk iathdj.k LFkkuh; xzke iapk;r ckjha esa ntZ
ugha gqvk gSA ftls izkFkhZ xzke iapk;r ds ntZ fjdkMZ esa tUe iSnkbZ'k esa ntZ djokuk pkgrh gSA
3379
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
vr% b'rgkj jkti= ds ek/;e ls vke turk dks lwfpr fd;k tkrk gS fd mijksDr tUe iSnkbZ'k
ds ckjs esa fdlh dks dksbZ Hkh mtj@,rjkt gks rks og fnukad 12&08&2016 dks lqcg 11-00 cts
vlkyru@odkyru gkftj vnkyr vkdj viuk mtj@,rjkt is'k dj ldrs gaSA vke turk dh vksj
ls dksbZ gkftj u gksus dh dkj.k vke turk ds f[kykQ ,d rjQk dk;Zokgh vey esa ykbZ tk,xhA
vkt fnukad 12&07&2016 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh]
celu fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
&&&&&&&&
c vnkyr Jh lqjs'k ifV;ky] lgk;d lekgrkZ izFke Js.kh] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0
fely ua0 % 16@2016
rkjh[k nk;j % 20&5&2016
muoku%&Jherh fo|k nsoh iRuh Lo0 Jh djrkj flag] xkao Hkeuksg] Mk0 cxckMk] rglhy celu fLFkr
VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
cuke
vke turk
fo"k;%&izkFkZuk&i= cjk;s ntZ djus e`R;q vUrxZr /kkjk 13¼3½ vf/kfu;e 1969-
izkfFkZu Jherh fo|k nsoh iRuh Lo0 Jh djrkj flag] xkao Hkeuksg] Mk0 cxckMk] rglhy celu
fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0 us bl dk;kZy; esa izkFkZuk&i= bl vk'k; ls is'k fd;k gS fd
mlds ifr dh e`R;q fnukad 23&04&2002 dks gks pqdh gS ijUrq mldh e`R;q dk iathdj.k LFkkuh; xzke
iapk;r nkMha esa ntZ ugha gqvk gSA ftls izkfFkZu xzke iapk;r ds fjdkMZ esa e`R;q ntZ djokuk pkgrh gSA
vr% b'rgkj jkti= ds ek/;e ls vke turk dks lwfpr fd;k tkrk gS fd mijksDr e`R;q ds ckjs
esa fdlh dks dksbZ Hkh mtj@,rjkt gks rks og fnukad 12&08&2016 dks lqcg 11-00 cts
vlkyru@odkyru gkftj vnkyr vkdj viuk mtj@,rjkt is'k dj ldrs gSaA vke turk dh vksj
ls dksbZ gkftj u gksus dh dkj.k vke turk ds f[kykQ ,d rjQk dk;Zokgh vey esa ykbZ tk,xhA
vkt fnukad 12&07&2016 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh]
celu fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
3380
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c vnkyr Jh lqjs'k ifV;ky] lgk;d lekgrkZ izFke Js.kh] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0
fely ua0 % 17@2016
rkjh[k nk;j % 15&6&2016
muoku%&Jherh fuf'k Bkdqj iq=h Jh lq[k jke] xkao egkMs] Mk0 ckjha] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0A
cuke
vke turk
fo"k;%&izkFkZuk&i= cjk;s ntZ djus tUe iSnkbZ'k vUrxZr /kkjk 13¼3½ vf/kfu;e 1969-
izkfFkZu Jherh fuf'k Bkdqj iq=h Jh lq[k jke] xkao egkMs] Mk0 ckjha] rglhy celu fLFkr VkS.kh
nsoh] ftyk gehjiqj] fg0 iz0 us bl dk;kZy; esa izkFkZuk&i= bl vk'k; ls is'k fd;k gS fd mldh tUe
iSnkbZ'k 15&10&1964 dks xkao egkMs esa gqbZ gS ijUrq mlds tUe dk iathdj.k LFkkuh; xzke iapk;r ckjha
esa ntZ ugha gqvk gSA ftls izkFkhZ xzke iapk;r ds ntZ fjdkMZ esa tUe iSnkbZ'k esa ntZ djokuk pkgrh gSA
vr% b'rgkj jkti= ds ek/;e ls vke turk dks lwfpr fd;k tkrk gS fd mijksDr tUe iSnkbZ'k
ds ckjs esa fdlh dks dksbZ Hkh mtj@,rjkt gks rks og fnukad 12&08&2016 dks lqcg 11-00 cts
vlkyru@odkyru gkftj vnkyr vkdj viuk mtj@,rjkt is'k dj ldrs gSaA vke turk dh vksj
ls dksbZ gkftj u gksus dh dkj.k vke turk ds f[kykQ ,d rjQk dk;Zokgh vey esa ykbZ tk,xhA
vkt fnukad 12&07&2016 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh]
celu fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
&&&&&&&&
c vnkyr Jh lqjs'k ifV;ky] lgk;d lekgrkZ izFke Js.kh] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0
fely ua0 % --------------
rkjh[k nk;j % --------------------
muoku%&Jh j?kqohj flag Mksxjk iq= Jh gfj flag Mksxjk] xkao fr;k.k] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0A
cuke
vke turk
fo"k;%&izkFkZuk&i= cjk;s ntZ djus tUe iSnkbZ'k vUrxZr /kkjk 13¼3½ vf/kfu;e 1969-
3381
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
izkFkhZ Jh j?kqohj flag Mksxjk iq= Jh gfj flag Mksxjk] xkao fr;k.k] Mk0 yxnsoh] rglhy celu
fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0 us bl dk;kZy; esa izkFkZuk&i= bl vk'k; ls is'k fd;k gS fd
mldh iq=h iqtk Mksxjk dh tUe iSnkbZ'k 27&02&1984 dh gS ijUrq mlds tUe dk iathdj.k LFkkuh;
xzke iapk;r mgy esa ntZ ugha gqvk gSA ftls izkFkhZ xzke iapk;r ds ntZ fjdkMZ esa tUe iSnkbZ'k esa ntZ
djokuk pkgrk gSA
vr% b'rgkj jkti= ds ek/;e ls vke turk dks lwfpr fd;k tkrk gS fd mijksDr tUe iSnkbZ'k
ds ckjs esa fdlh dks dksbZ Hkh mtj@,rjkt gks rks og fnukad 16&08&2016 dks lqcg 11-00 cts
vlkyru@odkyru gkftj vnkyr vkdj viuk mtj@,rjkt is'k dj ldrs gaSA vke turk dh vksj
ls dksbZ gkftj u gksus ds dkj.k vke turk ds f[kykQ ,d rjQk dk;Zokgh vey esa ykbZ tk,xhA
vkt fnukad 16&07&2016 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh]
celu fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
&&&&&&&&&&
c vnkyr Jh lqjs'k ifV;ky] lgk;d lekgrkZ izFke Js.kh] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0
fely ua0 % --------------
rkjh[k nk;j % --------------------
muoku%&Jh j?kqohj flag Mksxjk iq= Jh gfj flag Mksxjk] xkao fr;k.k] rglhy celu fLFkr VkS.kh nsoh]
ftyk gehjiqj] fg0 iz0A
cuke
vke turk
fo"k;%&izkFkZuk&i= cjk;s ntZ djus tUe iSnkbZ'k vUrxZr /kkjk 13¼3½ vf/kfu;e 1969-
izkFkhZ Jh j?kqohj flag Mksxjk iq= Jh gfj flag Mksxjk] xkao fr;k.k] Mk0 yxnsoh] rglhy celu
fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0 us bl dk;kZy; esa izkFkZuk&i= bl vk'k; ls is'k fd;k gS fd
mldh iq=h vkjrh Mksxjk dh tUe iSnkbZ'k 27&02&1984 dh gS ijUrq mlds tUe dk iathdj.k LFkkuh;
xzke iapk;r mgy esa ntZ ugha gqvk gSA ftls izkFkhZ xzke iapk;r ds ntZ fjdkMZ esa tUe iSnkbZ'k esa ntZ
djokuk pkgrk gSA
vr% b'rgkj jkti= ds ek/;e ls vke turk dks lwfpr fd;k tkrk gS fd mijksDr tUe iSnkbZ'k
ds ckjs esa fdlh dks dksbZ Hkh mtj@,rjkt gks rks og fnukad 16&08&2016 dks lqcg 11-00 cts
vlkyru@odkyru gkftj vnkyr vkdj viuk mtj@,rjkt is'k dj ldrs gaSA vke turk dh vksj
ls dksbZ gkftj u gksus ds dkj.k vke turk ds f[kykQ ,d rjQk dk;Zokgh vey esa ykbZ tk,xhA
3382
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
vkt fnukad 16&07&2016 dks esjs gLrk{kj o eksgj lfgr vnkyr ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
lgk;d lekgrkZ izFke Js.kh]
celu fLFkr VkS.kh nsoh] ftyk gehjiqj] fg0 iz0A
&&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jherh Lhamo Dolma w/o Late Shri Khaggan, r/o 95. T.C.S. Bhuppur, rglhy ikaoVk lkfgc]
ftyk fljekSj
- - okfn;kA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 115@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jherh Lhamo Dolma w/o Late Shri khaggan, r/o 95. T.C.S. Hkwiiqj, rglhy ikaoVk lkfgc]
ftyk fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd vkosfndk fdUgha dkj.kksa ls vius iq=
Tsering Choemphel dh e`R;q frfFk 04&04&09 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r
esa ntZ ugha djok ikbZ gSA bl ckjs vkosfndk }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k
esa nks xokgksa ds 'kiFk&i= Hkh vkosfndk us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosfndk us xzke
iapk;r HkkVkaokyh esa vius Åij of.kZr iq= Tsering Choemphel dh e`R;q frfFk 04&04&09 dks ntZ djus
dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
Jh Tsering Choemphel dh e`R;q frfFk xzke iapk;r HkkVkaokyh] rglhy ikaoVk lkfgc esa ntZ djus ckjs
dksbZ ,rjkt gks rks og fefr 16&08&2016 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok
ekSf[kd ,rjkt is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj
le>k tk;sxk fd mDr Jh Tsering Choemphel dh e`R;q frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus
ckjs fdlh dks dksbZ ,rjkt ugha gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 13&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jherh Lhamo Dolma w/o Late Shri Khaggan, r/o 95. T.C.S. Bhuppur, rglhy ikaoVk lkfgc]
ftyk fljekSj
- - okfn;kA
3383
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 116@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jherh Lhamo Dolma w/o Late Shri Khaggan, r/o 95. T.C.S. Bhuppur, rglhy ikaoVk lkfgc]
ftyk fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd vkosfndk fdUgha dkj.kksa ls vius ifr
Shri Khaggan dh e`R;q frfFk 15&05&2003 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa
ntZ ugha djok ikbZ gSA bl ckjs vkosfndk }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa
nks xokgksa ds 'kiFk&i= Hkh vkosfndk us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosfndk us xzke
iapk;r HkkVkaokyh esa vius Åij of.kZr ifr Shri Khaggan dh e`R;q frfFk 15&05&2003 dks ntZ djus dk
vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
Shri Khaggan dh e`R;q frfFk xzke iapk;r HkkVkaokyh] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ ,rjkt
gks rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok ekSf[kd
,rjkt is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj le>k tk;sxk
fd mDr Shri Khaggan dh e`R;q frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs fdlh dks dksbZ ,rjkt
ugha gS rFkk fu;ekuqlkj e`R;q frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 13&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jherh fceyk nsoh iq=h Jh yPNe.k] iRuh Jh rsgÙkj flag] fuoklh csgM+sokyk] rglhy ikaoVk
lkfgc] ftyk fljekSj
- - okfn;kA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 111@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jherh fceyk nsoh iq=h Jh yPNe.k iRuh Jh rsgÙkj flag] fuoklh csgM+sokyk] rglhy ikaoVk
lkfgc] ftyk fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd fdUgha dkj.kksa ls mldh tUe
frfFk 15&07&62 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa ntZ ugha djok ikbZ gSA
bl ckjs vkosfndk }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa nks xokgksa ds 'kiFk&i=
Hkh vkosfndk us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosfndk us xzke iapk;r vejdksV esa viuh
tUe frfFk 15&07&62 dks ntZ djus dk vuqjks/k fd;k gSA
3384
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
Jherh fceyk nsoh dh tUe frfFk xzke iapk;r vejdksV] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ
,rjkt gks rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok
ekSf[kd ,rjkt is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj
le>k tk;sxk fd mDr Jherh fceyk nsoh dh tUe frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs
fdlh dks dksbZ ,rjkt ugha gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 12&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jherh xqjehr dkSj iq=h Jh ijethr flag] fuoklh vejx<+ iq:okyk] rglhy ikaoVk lkfgc] ftyk
fljekSj
- - okfn;kA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 113@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jherh xqjehr dkSj iq=h Jh ijethr flag] fuoklh vejx<+ iq:okyk] rglhy ikaoVk lkfgc] ftyk
fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd fdUgha dkj.kksa ls mldh tUe frfFk
21&03&87 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa ntZ ugha djok ikbZ gSA bl ckjs
vkosfndk }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa nks xokgksa ds 'kiFk&i= Hkh
vkosfndk us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosfndk us xzke iapk;r iq:okyk dka'khiqj esa
viuh tUe frfFk 21&03&87 dks ntZ djus dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
Jherh xqjehr dkSj dh tUe frfFk xzke iapk;r iq:okyk dka'khiqj] rglhy ikaoVk lkfgc esa ntZ djus ckjs
dksbZ ,rjkt gks rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok
ekSf[kd ,rjkt is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj
le>k tk;sxk fd mDr Jherh xqjehr dkSj dh tUe frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs
fdlh dks dksbZ ,rjkt ugha gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 12&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
3385
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jh jes'k cgqxq.kk iq= Jh c`tnso] fuoklh 169@4] okMZ ua0 4] ikaoVk lkfgc] rglhy ikaoVk lkfgc]
ftyk fljekSj
- - oknhA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 117@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jh jes'k cgqxq.kk iq= Jh c`tnso] fuoklh 169@4] okMZ ua0 4] ikaoVk lkfgc] rglhy ikaoVk lkfgc]
ftyk fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd vkosnd fdUgha dkj.kksa ls viuh iq=h
es?kk cgqxq.kk dh tUe frfFk 03&09&95 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa ntZ
ugha djok ik;k gSA bl ckjs vkosnd }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa nks
xokgksa ds 'kiFk&i= Hkh vkosnd us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosnd us xzke iapk;r
dejÅ esa viuh Åij of.kZr iq=h dh tUe frfFk 03&09&95 dks ntZ djus dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
es?kk cgqxq.kk dh tUe frfFk xzke iapk;r dejÅ] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ ,rjkt gks
rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok ekSf[kd ,rjkt
is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj le>k tk;sxk fd
mDr es?kk cgqxq.kk dh tUe frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs fdlh dks dksbZ ,rjkt ugha
gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 13&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jh vfHk"ksd lSuh iq= Jh laxr flag] fuoklh rk:okyk] rglhy ikaoVk lkfgc] ftyk fljekSj
- - oknhA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 110@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
3386
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
Jh vfHk"ksd lSuh iq= Jh laxr flag] fuoklh rk:okyk] rglhy ikaoVk lkfgc] ftyk fljekSj us
,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd fdUgha dkj.kksa ls mldh tUe frfFk 15&10&90 dk
bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa ntZ ugha djok ik;k gSA bl ckjs vkosnd }kjk
,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa nks xokgksa ds 'kiFk&i= Hkh vkosnd us vius
izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosnd us xzke iapk;r cnzhiqj esa viuh tUe frfFk 15&10&90 dks
ntZ djus dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
vfHk"ksd lSuh dh tUe frfFk xzke iapk;r cnzhiqj] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ ,rjkt gks
rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok ekSf[kd ,rjkt
is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj le>k tk;sxk fd
mDr vfHk"ksd lSuh dh tUe frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs fdlh dks dksbZ ,rjkt ugha
gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 12&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jherh Migmar Dolma iRuh Lo0 Jh Ondu] fuoklh 102-T.C.S. Hkwiiqj] rglhy ikaoVk lkfgc]
ftyk fljekSj
- - okfn;kA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 114@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jherh Migmar Dolma iRuh Lo0 Jh Ondu] fuoklh 102-T.C.S. Hkwiiqj] rglhy ikaoVk lkfgc]
ftyk fljekSj us ,d izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd vkosfndk fdUgha dkj.kksa ls vius ifr
Jh Ondu iq= Pendun dh e`R;q frfFk 16&10&2002 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke
iapk;r esa ntZ ugha djok ikbZ gSA bl ckjs vkosfndk }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl
lEcU/k esa nks xokgksa ds 'kiFk&i= Hkh vkosfndk us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosfndk us
xzke iapk;r HkkVkaokyh esa vius ifr Ondu dh e`R;q frfFk 16&10&2002 dks ntZ djus dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
Lo0 Jh Ondu dh e`R;q frfFk xzke iapk;r HkkVkaokyh] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ ,rjkt
gks rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok ekSf[kd
,rjkt is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj le>k tk;sxk
fd mDr Lo0 Jh Ondu dh e`R;q frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs fdlh dks dksbZ ,rjkt
ugha gS rFkk fu;ekuqlkj e`R;q frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
3387
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
vkt fnukad 13&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
&&&&&&&&
c vnkyr dk;Zdkjh n.Mkf/kdkjh] ikaoVk lkfgc] ftyk fljekSj] fgekpy izns'k
Jh enu yky iq= Jh fljh jke] fuoklh xzke vtkSyh] rglhy ikaoVk lkfgc] ftyk fljekSj
- - oknhA
cuke
vke turk
- - izfroknhA
izdj.k la[;k % 112@16
muoku eqdíek % izkFkZuk&i= tsj /kkjk 13¼3½ tUe ,oa e`R;q iathdj.k vf/kfu;e] 1969-
Jh enu yky iq= Jh fljh jke] fuoklh xzke vtkSyh] rglhy ikaoVk lkfgc] ftyk fljekSj us ,d
izkFkZuk&i= izLrqr djds fuosnu fd;k gS fd vkosnd fdUgha dkj.kksa ls vius iq= lquhy dqekj dh tUe
frfFk 09&03&91 dk bUnzkt fu/kkZfjr vof/k ds vUnj lEcfU/kr xzke iapk;r esa ntZ ugha djok ik;k gSA
bl ckjs vkosnd }kjk ,d C;ku gYQh Hkh is'k fd;k x;k gS rFkk bl lEcU/k esa nks xokgksa ds 'kiFk&i=
Hkh vkosnd us vius izkFkZuk&i= ds lkFk layXu fd;s gSaA vkosnd us xzke iapk;r vtkSyh esa vius Åij
of.kZr iq= dh tUe frfFk 09&03&91 dks ntZ djus dk vuqjks/k fd;k gSA
vr% bl b'rgkj }kjk vke turk dks lwfpr fd;k tkrk gS fd ;fn fdlh Hkh O;fDr dks
lquhy dqekj dh tUe frfFk xzke iapk;r vtkSyh] rglhy ikaoVk lkfgc esa ntZ djus ckjs dksbZ ,rjkt gks
rks og fefr 16&08&16 dks ;k blls iwoZ gekjs U;k;ky; esa gkftj gksdj fyf[kr vFkok ekSf[kd ,rjkt
is'k dj ldrk gSA mDr fuf'pr frfFk ds ckn dksbZ Hkh ,rjkt ekU; ugha gksxk vkSj le>k tk;sxk fd
mDr lquhy dqekj dh tUe frfFk dks lEcfU/kr xzke iapk;r esa ntZ djus ckjs fdlh dks dksbZ ,rjkt ugha
gS rFkk fu;ekuqlkj tUe frfFk iathdj.k ds vkns'k tkjh dj fn;s tk;saxsA
vkt fnukad 12&07&16 dks gekjs gLrk{kj o eksgj ls tkjh gqvkA
eksgjA
gLrk{kfjr@&
dk;Zdkjh n.Mkf/kdkjh]
ikaoVk lkfgc] ftyk fljekSj ¼fg0 iz0½A
3388
jkti=] fgekpy izns'k] 08 vxLr] 2016@17 Jko.k] 1938
fu;U=d] eqnz.k rFkk ys[ku lkexzh] fgekpy izns'k] f'keyk&5 }kjk eqfnzr rFkk izdkf'kr
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