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LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 24^th October, 2016

No: Shram (A) 6-3/2016 (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:—

151&jkti=@2016&07&11&2016

¼5421½

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Sr.No: Case No:

Title of the Case

Date of Award

63/2007

Workers Union V/S Gulshan Chemfill Ltd. Sirmour

53/2014

Sh. Laxman Singh V/s Chitkara University, HIMUDA

Education HUB, Barotiwala, Solan.

69/2014

Sh. Dhan Dass V/S The Executive Engineer, HPPWD,

Division Chopal District Shimla & Anr.

117/2007

Smt. Kamal V/S DAV Public School, Sector-IV, BCS,

New Shimla, H.P. & Anr.

61/2010

Shri Pankaj Talogta V/S M/S Himachal Futurstic

Communication Ltd. Chambaghat, Solan.

82/2013

Shri Bal Krishan V/S Oyster Pharma (P) Ltd.

Kumarhatti, Soaln, H.P.

53/2012

Shri Mohar Singh & Ors V/S M/S Himshakti Project

(P) Ltd. Shimla, H.P.

27/2016

Shri Liaq Ram V/s The XEN, HPSEB, Shimla.

83/2016

Mazdoor Lal Jhanda Union V/S The General

Manager/Employer, Marigold Sarovar Portico Shimla.

10.

48/2016

Shri Inder Singh V/S The XEN, IPH, Division-II,

Shimla.

11.

47/2016

Shri Manoj Kumar V/S Senior Executive Engineer,

City Electrical Division, Shimla H.P.

12.

37/2016

Shri Basti Ram V/S The D.F.O. Renuka, Sirmour.

13.

09/2016

Shri Karampal Munda V/S Sacred Heart Convent

School, Dhalli, Shimla, H.P.

14.

07/2016

Shri Bal Krishan V/S The Ex. Engg. HPPWD,

Division No.1, Shimla-3, H.P.

15.

16/2016

Shri Daulat Ram V/S The XEN, HPPWD, Shimla.

16.

17/2016

Sh. Khema Nand V/S The XEN, HPPWD, Shimla.

17.

03/2015

Sh. Bhoj Singh V/S Himachal Tourism Development

Corporation, Shimla, H.P.

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.)

____________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. No. 63 of 2007.

Instituted on. 30.7.2007.

Decided on 16.9.2016.

Gulshan Chemical Workers Union through its president Shri Ramkrishan S/o Shri Majha

Ram, R/o Village and P.O Sainwala, Tehsil Paonta Sahib, District Sirmour, HP.

…Petitioner.

Vs.

Gulshan Chemfill Ltd., through its Manager Village Rampur Majri Dhaula Kaun District

Sirmour, HP.

…Respondent.

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

For petitioner : Shri Virender Pal, Advocate.

For respondent : Shri D.C Khanduja, Advocate.

AWARD

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

“Whether the action of the management of M/s Gulshan Chemfill Ltd., Village

Rampur Majri, Dhaula Kuan District Sirmour, HP to lock-out their factory w.e.f.

16.2.2007 without complying with provisions of the Industrial Disputes Act, 1947 is

proper and justified? If not, what relief of service benefits and amount of

compensation to one hundred one affected workmen (list of workers supplied by the

Labour Officer, Nahan is at Annexure-A) are entitled from the above Management?”

In nutshell the case of the petitioner union is that all the workers were initially

engaged by the respondent company against the posts of helpers, cleaners, fitters, cutting helpers,

G.P helpers Micronesia helper, lab helper, carbonator helper, carbonator operator etc., w.e.f. the

year, 2003 in the pay scale of `3000 to 5000/- per month and during the year, 2003, the total

strength of the workers were 140. All the workers kept on discharging their duties to the

satisfaction of their superiors from the very date of their engagement in the respondent company

and later by the year, 2006 about 31 workers remained on the rolls of the respondent company as

permanent workers, who were working with the company till 4.4.2006 when their services were

abruptly terminated by the management of respondent without prior notice and justification, hence,

on this illegal action of the management, the workers of the petitioner union raised the objection by

going on hunger strike as every worker was facing the problem of his livelihood. It is further stated

that in spite of requests of the workers, the respondent company did not incline to reengage the

services of the workers till 2.11.2006 and during this time on certain occasions, the management

had given false assurances to the workers about their re-engagement but of no avail. On 2.11.2006,

with the assistance of the Labour-Officer-cum-Conciliation Officer, Sirmour, the respondent

management had agreed to take back the services of all 31 workers of the petitioner union and an

agreement had taken place between the petitioner union and management whereby it had been

resolved that every effort would be made to accommodate the workers in the respondent company.

Thereafter the workers were discharging their duties in parlance to the agreement dated 2.11.2006

as well as to the satisfaction of their superiors but once again the respondent company asked the

workers of the petitioner union not to come to work w.e.f. 10.2.2007 and consequently terminated

their services without issuance of any notice under section 22 (2), 24, 25-A, 25-B and 25-F of the

Industrial Disputes Act, 1947 (hereinafter referred to as Act) despite the fact that all the workmen

of petitioner union had completed more than 240 days in each calendar year preceding their

termination. The respondent company had also failed to tender retrenchment compensation on

account of service rendered by the workers of petitioner union and even no EPF has been

contributed by the company of the workers, hence, the termination of the workers of petitioner

union is bad in law. Against this back-ground a prayer has been made that the directions be issued

to the respondent company to re-instate the services of entire 31 workers of the petitioner union

with retrospective effect along-with all the consequential service benefits with seniority and

continuity besides regularization.

3. The respondent contested the claim of the petitioner union by filing reply wherein

preliminary objections have been taken qua maintainability, that the petitioner union is not a

registered union and that the workers are gainfully employed with various establishments. On

merits, it has been asserted that the respondent company is into manufacturing of activated calcium

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carbonate and commenced its production from 9.11.2005 and the licence under the Factories Act

was applied and it was granted for 50 workers and initially 11 workers had been employed on

permanent role and 18 workers have been engaged through contractor. It is denied that workers

discharged their duties to the entire satisfaction of their superiors. However, it is submitted that in

the year, 2006, there were only 29 workers with the respondent company, hence, the list of the

workers of petitioner union as appended with the claim petition is fragment of imagination of

petitioner union and is totally baseless. The workers who were employed with the respondent

company during the year, 2005 and 2006 and again on 10.2.2007 went on illegal strike resultantly

the company suffered losses on account of the illegal strike, hence, the lock-out which is declared

in consequence of illegal strike is not illegal. It is denied that the services of the workers of

petitioner union had been terminated illegally without any prior notice. It is further submitted that

as of date out of 12 regular workers of the respondent company, 8 have taken their full & final

settlement and even the EPF had been paid by the respondent to the workers employed by it or

through the contractor. The respondent prayed for the dismissal of the claim petition.

4. By filing rejoinder the petitioner union reaffirmed his allegations by denying those of

the respondent.

5. Pleadings of the parties gave rise to the following issues which were struck on

5.11.2008.

1. Whether the action of management of M/s Gulshan Chemfil Ltd., Rampur Majri

to lock out their factory w.e.f. 16.2.2007 without complying with provisions of

the Industrial Disputes Act, 1947 is improper and unjustified as alleged? ... OPP

2. If issue no.1 is proved to what relief and amount of compensation to one hundred

one effected workmen are entitled to?

...OPP.

3. Whether the reference is not maintainable as alleged?

...OPR.

4. Relief.

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

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1

No.

Issue no.2

Becomes redundant.

Issue no.3

Not pressed.

Relief. Reference answered in favour of the respondent and against the petitioner union per

operative part of award.

Reasons for findings.

Issues no.1

8. To prove this issue, the petitioner union examined one Shri Ram Krishan, who has

stated that he was engaged as helper with Gulshan Chemfil Ltd., Rampur Majri in 2003 and he was

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made regular in 2005 and continued as such till 10.2.2007 and then his services along-with 100

workers were terminated without notice and without payment of compensation. He is the President

of the Gulshan Chemfil workers Union which is a registered union and the registration certificate of

their union is Ex. PA and he is also authorized to represent this union vide letter Ex. PB. They have

101workers who have worked as helper, lab helpers, fitter, cutting helpers, G.P helpers, Micronesia

helper, cleaner, carbonator helpers and carbonator operators in the pay scale of ` 3000-5000/-. All

101 workers were terminated on 10.2.2007 and the dispute was earlier compromised on 2.11.2006

in which it was undertaken by the respondent that they would not remove them from service. The

unit is still working and when the factory restarted, they made a complaint to the Labour Inspector,

Paonta Sahib but no action was taken on their complaint. In cross-examination, he admitted that on

17.9.2007, no meeting of their union was held and that when the services of workman is engaged,

his name is entered in adult workers register and when he leaves the job, it is also entered in the

same register. He denied that the payment of wages register of respondent company for the month

of April, 2006 to Feb., 2007 shows that there were 11 to 15 workers at the relevant time and that as

per the payment register, the salary of workmen were between 2250-2800. He admitted that 8

workers have already taken full & final settlement amount but denied that he was engaged after

Sept. 2005. He denied that there were only 11 to 15 workers with the company and about 18

workers were hired though contractor from November, 2005 till Feb., 2007. He further denied that

the company was not authorized to engage more than 50 workers. He also denied that they

participated in the strike and did not resume their duties and that there was no lock-out in the

company.

On the contrary, the respondent examined two RWs. RW-1 Shri Atul Rastogi has

stated that the respondent company started production in the month of November, 2005 and only 12

workers have been engaged at that time. The copy of attendance register is Ex. RW-1, the copy of

wages register of the workers is Ex. RW-2 and the copy of payment register for December, 2006 is

Ex. RW-3 and copy of payment register for the month of Jan., 2007 and Feb., 2007 are Ex. RW-4

and Ex. RW-5. Out of 12 workers, one worker namely Shri Sher Singh was promoted as Staff

Foreman by the company. Ex. RW-6 is the copy of register of workers and Ex. RW-7 is the copy of

production certificate issued by District Industry Centre, Nahan and Ex. RW-8 is the attested copy

of form no.1. Out of eleven workers, seven workers have left the job at their own and they also

submitted their letters for abandoning their jobs. Letter of Dalbir is Ex. RW-9 along-with full &

final payment voucher Ex. RW-10, letter of Dhani Ram Sharma is Ex. RW-11 and full & final

voucher is Ex. RW-12, letter of Balbir Singh is Ex. RW-13 and full & final voucher is Ex. RW-14,

letter of Ranjeet Singh is Ex. RW-15 and full & final voucher is Ex. RW-16, letter of Rajinder

Kumar is Ex. RW-17 and full & final voucher is Ex. RW-18, letter of Kashmiri Lal is Ex. RW-19

and full & final voucher is Ex. RW-20, letter of Papinder Singh is Ex. RW-21 and full & final

voucher is Ex. RW-22. He further stated that the factory also engaged 18 workers from contractor

Shri Rajesh Ram. Shri Ranjeet Singh was the President of the workers union and he filed a suit for

permanent injunction against the respondent company. The attested copy of complaint is Ex. Ex.

RW-23, certified copy of vakalatnama is Ex. RW- 24, affidavit of Shri Ranjeet Singh is Ex. RW-

25, the copy of resolution dated 8.4.2007 is Ex. RW-26 and certified copy of the judgment passed

by Civil Judge, Paonta Sahib is Ex. RW-27. The workers left the job at their own sweet will and the

record submitted by the workers union is fake only to grab the compensation amount. In cross-

examination, he denied that the company has not authorized him to defend the case. He admitted

that as per original register, there were 15 workers deputed in the company. He denied that in Feb.,

2007, they had 11 workers in their factory but admitted that as per Ex. RW-6 73 workers are listed.

He denied that in the year, 2003 they have 140 workers and that there were 31 workers in the year,

2006. He admitted that the petitioner left the job voluntarily as they had not sent any notice to him.

10. RW-2 Shri Raghu Ram has stated that he was the contractor and worked with the

company in the year, 2005 and he used to supply the workers/labourer in the respondent factory.

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The salary register of the workers from November, 2005 to Feb., 2007 is Ex. RW-2/A, attested

copy of payment of wages register from December, 2006 to Feb., 2007 is Ex. RW-2/B and he had

provided 18 workers to the factory in the year, 2005. The President of workers union was one Shir

Ranjeet Singh and Shri Ram Krishan never remained the employee of the company. In cross-

examination, he admitted that in the year, 2005, he had 21 workers with them, 25 workers in the

year, 2006 and 14 workers in the year 2007.

11. Shri D.C Khanduja, Advocate for respondent had tendered in evidence the copy of

Board resolution Ex. RX and certificate issued by DIC, Nahan Ex. RY.

12. The learned counsel for the petitioner contended that the services of the workers of

petitioner union were terminated without complying with the provisions of the Act despite the fact

that all of them have completed more than 240 days in each calendar year preceding their

termination as such their termination is bad in law.

13. On the other hand learned counsel for the respondent contended that the services of the

workers of the petitioner union had not been terminated illegally. He further contended that the

issue regarding the illegal termination of the workers was never referred by the appropriate

government to this Tribunal and as such this Court cannot travel beyond the terms of reference.

14. I have closely scrutinized the entire evidence on record, and from the closer scrutiny

thereof, it has become clear that the workers of petitioner union before the Conciliation Officer as

well as before the appropriate government did not raise any dispute regarding the illegal

termination of the workers. They rather claimed in the reference that the action of the management

of the respondent to lock-out their factory w.e.f. 16.2.2007 without complying with the provisions

of the Act is not proper and justified. The very terms of the reference show that the point of dispute

between the parties was not the fact of the termination of the workers by the respondent but the

propriety and justification of the respondent company to lock-out their factory w.e.f. 16.2.2007.

That is why the reference was expressed to say as to whether the action of the management to lock-

out their factory w.e.f. 16.2.2007 without complying with the provisions of the Act is proper and

justified. In other words by the reference, this Court was not called upon by the government to

adjudicate upon the question as to whether the termination of the workers of petitioner union was

illegal and unjustified. The reference is only limited to the narrow question as to whether the action

of the management to lock-out their factory w.e.f. 16.2.2007 is proper and justified.

15. It is a settled law that the jurisdiction of the Industrial Court to decide the industrial

disputes is determined by the terms of reference. Where in an order referring an industrial dispute

to a Tribunal under section 10 (1) of the Act, the appropriate government has specified the points of

dispute for adjudication, the Tribunal shall confine its adjudication to those points and matters

incidental thereto. In other words, the Tribunal is not free to enlarge the scope of dispute referred to

it but must confine its adjudication to the points specifically mentioned and anything which is

incidental thereto. In the statement of claim filed by the petitioner, it has been pleaded that the

import of the terms of reference is as to whether the termination of the workers of the petitioner

union w.e.f. 10.2.2007 is proper and justified and in the prayer clause it has been prayed that the

respondent be directed to reinstate 31 workers of the petitioner union with all consequential

benefits. Nothing precluded the petitioner to raise this plea before the Labour Commissioner for the

purpose of including the same in the reference. Therefore, it cannot be said that the import of the

terms of reference is regarding the propriety and justification of the termination of the workers of

the petitioner union by the respondent. The jurisdiction of the Tribunal is circumscribed by the

terms of reference and not by the pleadings or the consent of the parties. In (2004) 10 SCC 460,

Mukand Ltd Vs. Mukand Staff and Officers Association, the Hon’ble Supreme Court has held

that the Labour Court is the creature of the reference and cannot travel beyond the terms of

reference. The relevant portion of the aforesaid judgment is reproduced as under:

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“36. We, therefore, hold that the reference is limited to the dispute between the Company

and the Workmen employed by them and that the Tribunal, being the creature of the

Reference, cannot adjudicate matters not within the purview of the dispute actually referred

to it by the order of Reference.

In the present case also as observed earlier, as per the terms of reference the point of dispute

between the parties was not regarding the termination of the workers but was with regard to the

propriety and justification of the respondent management to lock-out their factory. Therefore, in

view of the law laid down by the Hon’ble Supreme Court, this Court has no jurisdiction to go

behind the reference and enquire into the question as to whether the termination of the workers of

the petitioner union w.e.f. 10.2.2007 is proper and justified.

16. Now, the next question which arises for consideration before this Court as to whether

the action of the management to lock-out their factory w.e.f. 16.2.2007 without complying with the

provisions of the Act is proper and justified. However, to prove the aforesaid fact no evidence has

been led by the petitioner. The petitioner union only examined one witness i.e PW-1, and except for

his statement no other evidence has been led by the petitioner union. Even, in his statement before

the Court, he has not stated anything about the lock-out of the factory of the respondent rather he

had only stated that the workers be reinstated in service. Hence, in the absence of any material and

evidence on record, it cannot be said that the action of respondent management to lock out their

factory w.e.f. 16.2.2007 without complying with provisions of the Industrial Disputes Act, 1947 is

improper and unjustified. Accordingly, issue no.1 is decided in favour of the respondent and

against the petitioner union.

Issue no.2

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

redundant.

Issue no.3

18. During the course of arguments, this issue was not pressed by the learned counsel for

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

respondent.

Relief

As a sequel to my above discussion and findings on issues no.1 to 3, the claim of the

petitioner fails and is hereby dismissed and as such the reference is ordered to be answered in

favour of the respondent and against the petitioner. Let a copy of this award be sent to the

appropriate government for publication in the official gazette. File, after completion, be consigned

to records.

Announced in the open Court today on this 16th day of September, 2016.

(SUSHIL KUKREJA)

Presiding Judge, Industrial

Tribunal-cum- Labour Court, Shimla

Camp at Nahan.

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IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. No. 53 of 2014.

Instituted on. 11.8.2014.

Decided on 8.9.2016.

Laxman Singh S/o Shri Gurbaksh Singh R/o Village Karanpur, P.O Nanakpur, Tehsil Kalka

District Panchkula, Haryana.

…Petitioner.

Vs.

Chitkara University HIMUDA Education HUB, Attal Nagar Barotiwala, District Solan, HP

through its Registrar/ Dean Administration.

…Respondent.

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

For petitioner

: Shri Niranjan Verma, Advocate.

For respondent : Shri Alok Bhardwaj, Advocate.

AWARD

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

“Whether termination of services of Shri Laxman Singh S/o Shri Gurbaksh Singh

Village Karanpur, P.O Nanakpur, Tehsil Kalka, District Panchkula Haryana

employed as Peon w.e.f. 9.10.2013 by the management of Chitkara University,

HIMUDA Education Hub Atal Nagar, Barotiwala District Solan, HP without

complying with the mandatory provisions of the Industrial Disputes Act, 1947 is legal

and justified? If not, what benefits, including reinstatement, amount of back-wages,

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

to from the above management?”

2. In nutshell the case of the petitioner is that he was working with the respondent as peon

since 14.11.2009 till 8.10.2013 and w.e.f. 9.10.2013, his services had been terminated illegally

without assigning any lawful reason, issuing any notice and conducting any enquiry and that too

without complying with the provisions of the Industrial Disputes Act, 1947 (hereinafter referred as

to Act). It is further stated that a show cause notice dated 3.10.2013 had been given to the petitioner

which was replied by him on 5.10.2013 wherein false allegation has been leveled against the

petitioner. That juniors to the petitioner have been retained and one Shri Gurjant Singh was

appointed in his place. The petitioner had completed 240 days in a calendar year. The petitioner

requested the respondent for his reengagement but of no avail and even the petitioner was not

allowed to enter the main gate of the University. Against this back-drop the petitioner has prayed

that his retrenchment be declared improper and unjustified and he be reinstated in service with full

back-wages, seniority including other consequential benefits.

3. The respondent contested the claim of the petitioner by filing reply wherein

preliminary objections have been taken qua maintainability and suppression of material facts as he

was careless towards his duties assigned to him by the respondent and he was also habitual of

creating indiscipline with regard to his duties. On merits, it has been asserted that the respondent

management had given one month’s salary in lieu of one month’s notice but the petitioner did not

turn up to take his salary after 8.10.2013. It is denied that the services of the petitioner had been

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terminated illegally but it is asserted that on various point of time the petitioner has been found

guilty of serious misconducts and he was also been warned at various levels by the respondent but

of no use. It is further asserted that the reply to show cause notice filed by the petitioner on

5.10.2013, was not found satisfactory, hence, his services had been terminated w.e.f. 9.10.2013.

The respondent prayed for the dismissal of the claim petition.

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

were struck on 2.112015.

5. Whether the termination of the services of the petitioner w.e.f. 9.10.2013 by the

respondent is in violation of the provisions of the Industrial Disputes Act, 1947 as

alleged?

...OPP

If issue no.1 is proved in affirmative to what relief of service benefits the

petitioner is entitled to?

...OPP

Whether the petitioner has suppressed material facts from this Court as alleged?

..OPR

8. Whether the petition is not maintainable as alleged?

...OPR

Relief.

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

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no.1 Yes.

Issue no.2 Entitled to reinstatement with seniority and continuity but without back wages.

Issue no.3 Not pressed.

Issue no.4 No.

Relief.

Reference answered in favour of the petitioner and against the respondent per

operative part of award.

Reasons for findings

Issues no.1

To prove this issue, the petitioner examined himself as PW-1 and deposed thathe was

engaged as peon by the respondent university on 14.11.2009 and worked as such till 8.10.2013. His

services had been terminated w.e.f 9.10.2013. He had completed 240 days in each calendar year

and his junior Gurjant Singh is still working with the respondent. After his termination, he

requested the respondent for his re-engagement but of no avail. Neither any enquiry was conducted

nor an opportunity of being heard was given to him and even no notice was issued and no

compensation was paid to him before terminating his services. The identity card was issued by the

respondent after one year, the copy of which is Ex. P-1. He is unemployed after his termination. In

cross-examination, he admitted that his duty as peon was to look-after the premises of the

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university campus and to lock and unlock the rooms. He further admitted that a warning letter dated

16.4.2012 Ex. RX-1 was issued to him and that on the same day he had written the apology vide

Ex. RX-2. He also admitted that warning letter Ex. RX-3 had been issued to him. He denied that on

8.3.2013, he was absent from the projector room during duty hours and that the projector was

stolen from the premises when he was absent from duty. He further denied that on 3.10.2013 show

cause notice Ex. RX-4 was issued to him and that the termination letter dated 8.10.2013, Ex. RX-5

was issued to him. He admitted that Gurjant Singh was engaged before him and he is still working

with the respondent.

8. On the contrary, the respondent examined two RWs. RW-1 Shri Ripu Daman Singh,

Assistant Registrar of respondent university stated that the petitioner was working as peon on the

first floor of pie block and his work was not up to the satisfaction and warning letter Ex. RX-1 was

issued to him by the security officer. The petitioner tendered apology vide letter Ex. RX-2 and

warning letter Ex. RX-3 was also issued to him. Thereafter, show cause notice Ex. RX-4 was issued

to the petitioner and then termination letter Ex. RX-5 was issued. Since the work and conduct of the

petitioner was not satisfactory, therefore, he is not entitled to any relief. In cross-examination, he

admitted that the security remains present on the gate around 24 hours. He denied that the petitioner

was assigned duty on 13.9.2013 at old academy block. He admitted that regarding missing of

projector no FIR was lodged with the Police. He also admited that no domestic enquiry had been

initiated against the petitioner and no chargesheet was issued to him. He denied that only one peon

i.e the petitioner was assigned the duty for looking after three blocks. He expressed his ignorance

that how many new peons have been engaged and how many juniors to the petitioner have been

retained after his termination.

9. RW-2 Shri Harbans Lal, Supervisor of the respondent university stated that he used to

supervise the work of peon and other housekeeping staff and the petitioner was working as peon

under his supervision. On 1.10.2013, one projector form room no. 12.09 was found missing and at

that time the petitioner was on duty to guard room no. 1209 and thereafter the petitioner informed

the department of IT but the same was found reinstalled after some time and when he asked the

petitioner about reinstallation of projector, he expressed his ignorance. Earlier also one projector

was stolen from room no, 411 where the petitioner was on duty and the same could not be traced.

Regarding the theft of the projector, he had also filed one letter Ex. RW-2/A before the Dean of the

university. In cross-examination, he denied that on the day when the projector was found missing,

the petitioner was on duty at another block. He denied that the petitioner was not on duty at room

no. 411 at the relevant time when the projector was stolen. He admitted that at 5:00PM the keys of

the rooms are deposited by the respective peons on the main gate but denied that the staff of IT

department used to take keys from the main gate for repairing the projectors etc. even after 5:00

PM. He further admitted that the petitioner used to work honestly and that two fresh persons have

been engaged after the termination of the petitioner.

10. The learned counsel for the petitioner contended that the services of the petitioner

have been terminated illegally by the respondent without following the provisions of the Act and

without serving any show cause notice, chargesheet and without holding any enquiry whereas his

juniors are still working with the respondent. He further contended that the termination of the

petitioner in the aforesaid manner, in violation of the principles of natural justice, tantamount of

unfair labour practice, as such, the petitioner is entitled to be reinstated in service.

11. Conversely, the learned counsel for the respondent contended that the services of the

petitioner were rightly terminated in view of the gross misconduct on his part and there is no

violation of any mandatory provisions of the Act.

12. I have closely scrutinized the entire evidence on record, and from the closer scrutiny

thereof, it has become clear that the petitioner had worked with the respondent as peon from

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14.11.2009 till 8.10.2013. It is also not in dispute that the petitioner was the permanent employee of

the respondent prior to his termination. Though, the case of the respondent is that his services have

been rightly terminated in view of the grave/major misconduct on his part. However, from the

perusal of the record it has become clear that the services of the petitioner had been terminated vide

termination letter Ex. RX-5 without holding any domestic enquiry and without issuance of any

chargesheet as admitted by the respondent. Now, the question which arises for consideration before

this Court as to whether the action of the respondent was illegal and unjustified in terminating the

services of the petitioner without holding the domestic enquiry and without following the principles

of natural justice on the ground of the misconduct. It is a settled legal proposition that a workman

against whom the misconduct is alleged cannot be dismissed unless a proper domestic enquiry is

held against him in respect of the alleged misconduct. Even, if there is a proved misconduct against

the workman, he cannot be discharged or dismissed from service unless he has been afforded

reasonable opportunity of being heard before initiating any action against him by the

employer/respondent. In the present case admittedly neither any chargesheet was issued to the

petitioner nor any domestic enquiry was held before terminating him from service. 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 workman was

arrested and was convicted of the offence punishable under section 324 of the IPC and he was

terminated without conducting any enquiry. The Hon’ble High Court has held that his 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:

……………………………………..

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 continuously with the respondent

from the 14.11.2009 till 8.10.2013 and he was the permanent employee. Therefore, it was

incumbent upon the respondent to have conducted the enquiry against the petitioner prior to 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

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and without affording reasonable opportunity of being heard to the petitioner is in utter violation of

the principles of natural justice.

13. The learned counsel for the respondent contended that the respondent had proved the

misconduct committed by the petitioner by leading fresh evidence before this Court. There can be

no dispute about the fact that the respondent is entitled to lead evidence on merits before this Court

to prove the misconduct of the petitioner in case his dismissal is found to be in violation of the

principles of natural justice. In (2006)-6 S.C.C 325, titled as Amritt Vanaspati Co. Ltd. Vs.

Khem Chand and another, it has been held by the Hon’ble Apex Court that even if no enquiry

has been held by the employer or the enquiry held is found to be defective, the Tribunal in order to

satisfy itself about the legality and validity of the order, has to give an opportunity to the employer

and the employee to adduce evidence before it. Now, the next question which arises for

consideration before this Court is as to whether the alleged misconduct has been proved by the

respondent against the petitioner or not. The case of the respondent is that the petitioner was

careless towards his duties assigned to him which resulted in loss of the property to the respondent

and that before terminating the services of the petitioner a show cause notice dated 3.10.2013 Ex.

RX-4 was issued to him and on 8.10.2013, the services of the petitioner were terminated w.e.f.

9.10.2013 vide letter dated 8.10.2013 Ex. RX-5. The perusal of show cause notice Ex. RX-4 issued

to the petitioner shows that on 1.10.2013, one projector was stolen from room no. 1209 and when

Mr. Harbans Lal, Supervisor checked the room no. 1209, he found that the projector was missing

but while the investigation was being carried out, within two hours it was found that the projector

was put back in room no. 1209. It has further been mentioned in the show cause notice that earlier

also one projector was stolen from the same academic block due to the negligence on the part of the

petitioner due to which loss of 75-80,000/- occurred. The perusal of termination letter Ex. RX-5

shows that the services of the petitioner were terminated on the same grounds as mentioned in the

show cause notice. To prove the aforesaid misconduct the respondent examined RW-1 and RW-2.

RW-1 admitted in cross-examination that the projector can only be installed by a technical person

and the duty of the petitioner was from 9:00 AM to 5:00 PM. It has also been deposed by RW-1

that the petitioner himself informed about the missing of the projector and no FIR was lodged with

the Police regarding the same. RW-2 categorically deposed that on 1.10.2013, one projector from

room no. 1209 was found missing and the petitioner informed about the same to the department of

IT and he used to remain on duty from 8:00 AM to 5:00 PM. However, from the evidence on

record it has not been established that on 1.10.2013, the projector was initially removed by the

petitioner and later on he placed back the projector at the same place. No evidence has been led by

the respondent that it was the petitioner alone who had earlier removed the projector and thereafter

placed back the same. RW-1, categorically admitted in cross-examination that the projector can

only be installed by a technical person. Since, the petitioner is not a technical person, therefore, the

respondent has failed to explain as to how the projector had been placed back in room no. 1209.

Regarding the theft of the projector on earlier date, it cannot be said that the petitioner had stolen

the projector as it has come in the evidence that there is only one main gate to enter in the

University campus and the security remains present on this main gate round the clock for 24 hours.

Moreover, no FIR was lodged by the respondent regarding the theft of the projector. Therefore, in

the absence of any evidence on record, the theft of the projector cannot be attributed to the

petitioner. Except for the aforesaid allegations, no other allegation has been leveled either in the

show cause notice Ex. RX-4 or in the termination letter Ex. RX-5. Hence, from the evidence on

record, it cannot be said that the misconduct leveled against the petitioner has been proved by the

respondent before this Court.

14. Therefore, in view of the fact that neither any domestic enquiry was conducted against

the petitioner nor the misconduct has been proved before this Court by the respondent, it can safely

be held that the termination of the services of the petitioner w.e.f. 9.10.2013 by the respondent was

illegal and unjustified.

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15. Admittedly, the petitioner had completed more than 240 days in each calendar year,

preceding his termination. Now, it stands proved on record that the services of the petitioner had

been terminated without giving any opportunity of being heard to him. As per the termination letter

Ex. RX-5, the petitioner was given one month’s salary in lieu of notice period and he was directed

to collect the same from Accounts Office. However, the respondents have failed to comply with the

conditions (b) and (c) of section 25-F of the Act before terminating the services of the petitioner. At

this juncture, it would be relevant to re-produce section 25-F of the Act, which reads as under:

25-F. CONDITIONS PRECEDENT TO RETRENCHMENT OF WORKMEN.- No

workman employed in any industry who has been in continuous service for not less

than one year under an employer shall be retrenched by that employer until-

(a) the workman has been given one month’s notice in writing indicating the reasons

for retrenchment and the period of notice has expired, or the workman has been

paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment compensation which

shall be equivalent of fifteen days’ average pay (for every completed year of

continuous service) or any part thereof in excess of six months; and

(c) notice in the prescribed manner is served on the appropriate government ( or

such authority as may be specified by the appropriate Government by notification

in the Official Gazette.)

16. 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 not complied with the conditions of section 25-F as

enumerated in clause (b) & (c), precedent to the retrenchment of petitioner. In (2015) 4 SCC 544,

Mackinnon Mackenzie and Company Ltd., Vs. Mackinnon employees Union, the Hon’ble

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.”

17. In the present case also no evidence has been produced by the respondent to prove that

the petitioner has been paid retrenchment compensation equivalent to the fifteen days’ average pay

(for every completed year of continuous service) or any part thereof in excess of six months as per

clause (b) of section 25-F. Further, with regard to the provisions of clause (c) of the section 25-F,

the respondent has failed to produce any evidence which could go to show that the notice was

served in the prescribed manner on the appropriate government. Therefore, it has become clear that

the respondent has not complied with the conditions (b) & (c) of the section 25-F, which are

mandatory in nature as such the termination of the services of the petitioner by the respondent is

illegal and unjustified.

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18. Therefore, in view of my forgoing discussion, I have no hesitation in holding that the

services of the petitioner have been terminated illegally without conducting of any enquiry and

following the provisions of Industrial Disputes Act, 1947. Hence, this issue is decided in favour of

the petitioner and against the respondent.

Issue no.2.

19. Since, I have held under issue no.1 above that the termination of services of the

petitioner by the respondent without complying with the provisions of the Act is improper, illegal

and unjustified, hence, the petitioner is held entitled to reinstatement in service with seniority and

continuity.

20. Now, the question which arises for consideration, before this Court is as to whether the

petitioner is entitled to full back wages as contended by the learned counsel for the petitioner. In

(2009) 1 SCC 20, Kanpur Electricity Supply Company Limited Vs. Shamim Mirza, the

Hon’ble Supreme Court has held that once the order of termination of services of an employee is

set-aside, ordinarily, the relief of reinstatement is available to him. However, the entitlement of an

employee to get reinstated does not necessarily result in payment of full or partial back-wages,

which is independent of reinstatement. It has further been held by the Hon’ble Supreme Court in

2010 (1) SLJ S.C 70, M/s Ritu Marbals Vs. Prabhakant Shukla that full back wages cannot be

granted mechanically, upon an order of termination be declared illegal. It is further held that

reinstatement must not be accompanied by payment of full back wages even for the period when

the workman remained out of service and contributed little or nothing to the Industry.

21. Moreover, the petitioner was under an obligation to prove by leading cogent evidence

that he was not gainfully employed after the termination of his services. The initial burden is on the

workman/employee to show that he was not gainfully employed as held by the Hon’ble Apex

Court in (2005) 2 Supreme Court Cases 363 titled as Kendriya Vidyalaya Sangathan and

another Vs. S.C Sharma that:

“16.…………..When, the question of determining the entitlement of a person to back-

wages is concerned, the employee has to show that he was not gainfully employed. The

initial burden is on him. After and if he places materials in that regard, the employer can

bring on record materials to rebut the claim…………..”

22. In the present case, the petitioner has only stated that he is unemployed. Except for his

bald statement, no other evidence has been led by the petitioner to prove that he was not gainfully

employed. The petitioner has failed to discharge his burden by placing any concrete material on

record and by leading any cogent and satisfactory evidence 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. During the course of arguments, this issue was not pressed by he learned counsel for

the respondent, hence, the same is decided in favour of the petitioner and against the respondent.

Issue no.4.

24. In support of this issue, no evidence has been led by the respondent which could go to

show that this petition is not maintainable especially when the same was filed by the petitioner

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pursuant to reference sent by the appropriate government to this Court for adjudication. Therefore,

by holding it to be maintainable, 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 4, the claim of the

petitioner succeeds and is hereby allowed with the result, the petitioner is ordered to be reinstated

in service forth-with with seniority and continuity. 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 the official gazette. File, after completion, be consigned to records.

Announced in the open Court today on this 8th day of September, 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. 69 of 2014.

Instituted on 1.9.2014.

Decided on 28.9.2016.

Dhan Dass S/o Shri Kalam Ram R/o VPO Tikkari, Tehsil Chopal, District Shimla, HP.

…Petitioner

VS.

1. The Executive Engineer, HPPWD Division, Chopal, District Shimla, HP.

2. The Principal Secretary, Labour & Employment to the government of Himachal

Pradesh.

…Respondents

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

For petitioner

Ms. Anu Tuli, Advocate

For respondents

Ms. Reena Chauhan, Dy. DA.

AWARD

The reference for adjudication, sent by the appropriate government, is as under:

“Whether termination of services of Shri Dhan Dass S/o Shri Kali Ram VPO

Tikkari, Tehsil Chopal, District Shimla, HP during September, 1999 by the Executive

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Engineer, HPPWD Division Chopal, District Shimla HP without complying with the

provisions of the Industrial Disputes Act, 1947 is legal and justified? If not, what amount

of back-wages, seniority, past service benefits and compensation the above workman is

entitled to from the above employer?”

2. In nutshell, the case of the petitioner is that during the year, 1992, he was appointed as

a daily wager beldar on muster roll basis under the control of SDO/JE Feduj Division Nerwa and

was assigned the duties of supervisor which was regularly and continuously performed by him till

4.8.1999 on which date he was marked absent for half day and was ordered verbally about the

change of the nature of duty from officiating supervisor to beldar but the petitioner continued to

work as supervisor up to 23.8.1999, when the concerned JAE, Fedaj once again ordered the mate

Megh Ram not to mark the presence of petitioner, if he does not work as beldar. It is further stated

that the petitioner continued to attend the duty but he was marked absent in the muster roll for the

month of September, 1999 issued against the work of Sagroti, Tikkari and Maneoti road and that

such act of the respondent no.1 was challenged by the petitioner by way of OA no. 2670 of 1999

which was dismissed in default on 14.3.2006 and this fact came to the knowledge of petitioner in

the year, 2010 when a new counsel was engaged and the file was tracked and thereafter on the

suggestion of counsel, the petitioner raised demand notice under section 2-A of the Industrial

Disputes Act, 1947 (hereinafter referred as to Act). It is also stated that the respondents have

illegally and unlawfully retrenched the petitioner from service without any sufficient cause and

reason by ignoring the fact that he had completed more than 240 days in each calendar year

preceding his termination and even no opportunity of being heard was afforded to him. The

services of one Shri Shiv Dutt had been regularized on 22.1.2007, who joined the department in

March, 1996 whereas the services of the petitioner were terminated without issuing any chargesheet

and without holding any enquiry and even he had represented to the respondents for his

regularization to the post of supervisor after the completion of eight years but of no avail and that

he is unemployed after his termination. Against this back-ground a prayer has been made to set

aside the termination of the services of the petitioner and he be reinstated in service with seniority

and continuity along-with full back–wages.

3. The petition has been contested, on having raised preliminary objections qua

maintainability and that the petitioner has not come to this Court with clean hands. On merits, it has

been admitted that the petitioner was engaged as daily wages beldar in the month of December,

1992 and remained in service till the year, 1999. However, it is submitted that the petitioner had not

completed eight years of continuous service with minimum of 240 days in a calendar year as per

the policy of the state government and he had not worked as supervisor. The petitioner had been

working as beldar and was found sitting idle on 4th August, 1999 at about 4:00 PM during the

inspection of Assistant Engineer, Nerwa and he was advised to work with the labour otherwise he

would be marked absent in future and on 23rd August at about 11:30 AM, he was again found

sitting idle, hence, he was marked absent by the Junior Engineer of Feduj section and since the

services of the petitioner had been engaged as beldar and was supposed to discharge the duties of

beldar as such the question to change his nature of duties does not arise. The petitioner refused to

discharge the duties of beldar. It is further asserted that the petitioner left the job at his own will and

the respondent never terminated his services. 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 2.1.2016.

1. Whether the termination of the services of the petitioner during September, 1999

by the respondents without complying with the provisions of the Industrial

Disputes Act, 1947 is illegal and unjustified as alleged?

....OPP

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2. If issue no.1 is proved in affirmative, to what relief of service benefits the

petitioner is entitled to?

…OPP

Whether this petition is not maintainable?

...OPR

4. Whether the petitioner has suppressed material facts from this Court as alleged?

...OPR

5. Relief.

5. I have heard the learned Counsel for the petitioner and Ld. DDA for respondents and

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 reinstatement as beldar with seniority and continuity but without

back-wages.

Issue no.3

No.

Issue no.4

Not pressed.

Relief.

Reference answered in favour of the petitioner and against the respondent

per operative part of award.

Reasons for findings

Issue no. 1

7. The learned counsel for the petitioner contended that the services of the petitioner were

engaged as daily waged beldar in the year, 1992 whereas he was assigned the duties of supervisor

which was regularly performed by him till 4.8.1999 and thereafter his nature of duties had been

verbally changed from officiating supervisor to beldar without issuing any order. She further

contended that despite having attended the duties by the petitioner, he was marked absent and his

services have been terminated illegally without issuance of any notice and payment of

compensation. She also contended that juniors to petitioner have been retained by the respondent

and the services of the petitioner had been terminated without affording any opportunity of being

heard.

On the other hand, learned counsel for the respondent contended that the petitioner

was engaged as beldar and he had worked as beldar with the respondent and no point of time he

was assigned the duties of supervisor. She further contended that the petitioner had refused to work

as beldar and abandoned his job at his own. She also contended that the services of the petitioner

were never terminated by the respondent.

9. To prove this issue, the petitioner stepped into the witness box as PW-1 to depose that

he was engaged as daily wages beldar in the year, 1992 with the respondent no.1 under Fedag

Division and he was assigned the work of supervisor and as such he worked w.e.f. 1992 till 1999.

His services had been terminated orally in the month of November, 1999 on the ground that he had

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to work as a beldar and not as a supervisor and he was not given any order in writing about the

change of nature of work. Ex. PW-1/A is the copy of legal notice and thereafter he had filed an OA

Ex. PW-1/B before the Administrative Tribunal in the year, 1999 and the reply filed by the

respondents to the aforesaid OA is Ex. PW-1/C. The copy of demand notice is Ex. PW-1/D. He

prayed for his reinstatement in service along-with all consequential service benefits. In cross-

examination, he admitted that no appointment letter had been annexed by him with his petition and

that he had been engaged as daily wages beldar. He denied that he had not worked as supervisor but

admitted that the respondents had not given anything in writing to him about the nature of his work

as supervisor. He admitted that from the year, 1993 to 1998, he had completed 240 days. He denied

that on 4.8.1999, when the SDO and JE inspected the spot, he was found absent from his duties but

admitted that on 23.8.1999, he had informed the SDO and JE that he would work as supervisor and

not as beldar. He denied that he abandoned the job at his own.

10. PW-2 Shri Megh Ram stepped into the witness box to depose that he was working as

mate in the respondent department and from the year, 1993 to 1998, he worked in HPPWD

Division Nerwa. The petitioner was also working there during the aforesaid period and he used to

mark presence of the petitioner and also used to prepare the muster rolls. The work and conduct of

the petitioner was satisfactory and no complaint was received against him and one Shiv Dutt as also

working as beldar during the aforesaid period and he has been regularized now. In cross-emanation,

he admitted that muster rolls Ex. D-1 and Ex. D-2 have been prepared by him and the petitioner

was not doing any supervisory work. Shiv Dutt was working from the year, 1995. There was no

break in service of the petitioner from 1993 to 1998 and the petitioner never remained absent

willfully.

11. Conversely, the respondent examined one Shri Jai Lal Kanta, Junior Engineer as RW

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

averments as made in the reply. He also tendered in evidence mndays chart of the petitioner Ex.

RW-1/B and regularization policy mark RX. In cross-examination, he admitted that muster roll was

issued at the instance of XEN and the attendance was marked by the concerned mate. He denied

that the petitioner was made to work against the post of supervisor. He has no knowledge that the

petitioner supervised the survey of Maneoti-Kahak road along-with other surveyors. He denied that

the petitioner had worked for Maneoti Health Centre, Breast wall at Tikkri and Shantha Sub Centre

repairing. He further admitted that no show cause notice was issued to the petitioner in August,

1999 for his alleged sitting idle during working hours. He also admitted that the similarly situated

persons like the petitioner have been regularized but denied that the services of the petitioner have

been terminated illegally without giving him any opportunity of being heard. He admitted that no

enquiry was conducted against the petitioner but denied that the petitioner was intentionally marked

absent.

12. RW-2 Shri Ajay Kapoor Executive Engineer has stated that the petitioner had worked

as beldar from the year, 1992 to 5th May, 1999 and it has never come in his knowledge that any

beldar was allowed to act as supervisor as he had never given any such type of instructions. In

cross-examination, he admitted that as per their office rules, an employee can be terminated after

the issuance of notice and that an opportunity of being heard is given to the employee prior to his

termination. He denied that in March, 1999, measurement of STM Road was conducted by their

department.

13. I have closely scrutinized the entire evidence, on record, and from the closer scrutiny

thereof it has become clear that the petitioner was engaged as daily rated beldar by the respondent

in the year, 1992. No doubt, the case of the petitioner is that he was assigned the work of supervisor

and he worked as such till 1999. However, the petitioner had failed to place on record any such

document and to lead any evidence which could go to showthat he was made to work against the

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post of supervisor. Even, PW-2 Shri Megh Ram admitted in cross-examination that the petitioner

was not doing any supervisory work. Moreover, RW-1 Shri Jai Lal Kanta has denied in his cross-

examination that the petitioner was made to work against the post of supervisor. RW-2 also stated

that the petitioner had worked as beldar and no beldar was allowed to act as supervisor. Therefore,

in the absence of any oral as well as documentary evidence, I have no hesitation in holding that the

petitioner has failed to prove that he had worked as supervisor with the respondent.

14. The learned Dy. DA for the respondents first contended that the petition is hopelessly

barred by limitation. It is not in dispute that the petitioner had worked till 4.8.1999 with the

respondent and he raised the industrial dispute before Labour-cum-Conciliation Officer, Shimla on

15.11.2011 vide demand notice Ex. PW-1/D after a gap of about 12 years. The law on the point is

well settled that no limitation is prescribed either under the Industrial Disputes Act or under the

Limitation Act for raising the Industrial Dispute. The Hon’ble Supreme Court in its various

judgments has held that the relief under the Industrial Disputes Act cannot be denied to the

workman merely on the ground of delay. It has been held by the Hon’ble Supreme Court in in

(1999) 6 SCC 82, titled as Ajayab Singh Vs. Sirhind Co-operative Marketing –cum- processing

Service Society Limited and Another.

that:-

“The provisions of Article 137 of Limitation Act, 1963 are not applicable to the

proceedings under the ID Act. The relief under the ID Act cannot be denied merely

on the ground of delay. The plea of delay if raised by the employer is required to be

proved as a matter of fact by showing the real prejudice and not as a merely

hypothetical defence. No reference to the Labour Court can be generally questioned

on the ground of delay alone”

It has also been held by the Hon’ble Supreme Court in Gurmail Singh Vs. Principal

Government College of Education and others, (2009) 9 SCC 496 that mere delay in challenging

the termination would not be a bar to the adjudication of the matter but could only deprive the

appellant of his back wages for the period of delay in raising the termination issue. In a latest

judgment, the Hon’ble Supreme Court in 2014, 10 SCC 301 titled as Raghubir Singh Vs.

General Manager, Haryana Roadways Hissar has held that Limitation Act has no application to

reference made by the appropriate government to Labour Court/Industrial Tribunal for adjudication

of existing industrial dispute. The relevant portion of the aforesaid judgment is reproduced as

under: “16 Further, the workman cannot be denied to seek relief only on the ground of delay

in raising the dispute as held in the case of S.M. Nilajkar & Ors. v. Telecom District Manager,

Karnataka it was held by this Court as follows:

“17. It was submitted on behalf of the respondent that on account of delay in

raising the dispute by the appellants the High Court was justified in denying relief

to the appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. v.

Union of India and Ors. (supra)1993 AIR SCW 2214, it was held that a casual

labourer retrenched by the employer deprives himself of remedy available in law

by delay itself, lapse of time results in losing the remedy and the right as well. The

delay would certainly be fatal if it has resulted in material evidence relevant to

adjudication being lost and rendered not available. However, we do not think that

the delay in the case at hand has been so culpable as to disentitle the appellants

for any relief.....” (Emphasis supplied).

17 In view of the legal principles laid down by this Court in the above judgment,

the reference of the industrial dispute made in the case on hand by the State

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Government to the Labour Court to adjudicate the existing industrial dispute

between the parties was made within a reasonable time, considering the

circumstances in which the workman was placed, firstly, as there was a criminal

case pending against him and secondly, the respondent had assured the workman

that he would be reinstated after his acquittal from the criminal case. Moreover,

it is reasonable to adjudicate the industrial dispute in spite of the delay in raising

and referring the matter, since there is no mention of any loss or unavailability of

material evidence due to the delay. Thus, we do not consider the delay in raising

the industrial dispute and referring the same to the Labour Court for

adjudication as gravely erroneous and it does not debar the workman from

claiming rightful relief from his employer”.

Therefore, the aforesaid law declared by the Hon’ble Supreme Court in various context

makes the legal position clear that there is no limitation prescribed either under the Industrial

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

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

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

the ground of delay.

15. In the back-ground of the aforesaid legal position, in the instant case, the services of

the petitioner were terminated during Sept. 1999 and thereafter the petitioner had filed an OA no.

2670 of 1999 before the Administrative Tribunal which was dismissed in default on 14.3.2006

which fact came to his knowledge in the year, 2010 when he engaged a new counsel. Thereafter, on

the advice of the counsel, instead of pursuing the remedy for restoration of the aforesaid OA, the

petitioner raised the Industrial Dispute and the matter was referred by the appropriate government

to this Court for adjudication. Therefore, the petitioner cannot be blamed for the delay in raising the

present dispute who had kept his dispute alive. Moreover, it is not the case of the respondent that

due to the delay in raising the industrial dispute, there is any loss or unavailability of material

evidence. Hence, it cannot be said that delay in raising the industrial dispute is fatal to the reference

and as such the petitioner cannot be debarred from claiming the relief from his employer and mere

delay in challenging the termination would not be a bar to the adjudication of the present dispute

which has been referred to this Court by the appropriate government.

16. The stand which has been taken by the respondent is to the effect that the services of

the petitioner had never been terminated but he himself had abandoned the job without any

intimation. However, there is no iota of evidence on record which could go to show that the

petitioner had left the job on his own. It is well settled that mere plea of abandonment is not

sufficient to prove that the workman had abandoned the job. The abandonment is always a question

of intention which cannot be attributed to an employee without adequate evidence in that behalf. In

AIR 1979 SC 582 case titled as G.T Lad and others Vs. Chemicals and Fibers India Ltd. it has

been held as under:

“From the connotations reproduced above it clearly follows that to constitute

abandonment, there must be total or complete giving up of duties so as to indicate an

intention not to resume the same. In Buckingham Co. v. Venkatiah (1964) 4 SC R 265: (AIR

1964 SC 1272), it was observed by this Court that under common law an inference that an

employee has abandoned or relinquished service is not easily drawn unless from the length of

absence and from other surrounding circumstances an inference to that effect can be

legitimately drawn and it can be assumed that the employee intended to abandon service.

Abandonment or relinquishment of service is always a question of intention, and normally,

such an intention cannot be attributed to an employee without adequate evidence in that

behalf. Thus whether there has been a voluntary abandonment of service or not is a question

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of fact which has to be determined in the light of the surrounding circumstances of each

case.”

Similarly, in a case titled Ocean Creations Vs. Manohar Gangaram Kamble 2013 SCC

Online Bom 1537:2014)140 FLR 725, the Hon’ble Bombay High Court held as under:

“8. The legal position is also settled that ‘abandonment or relinquishment of service’ is

always a question of intention and normally such intention cannot be attributed to an

employee without adequate evidence in that behalf. This is a question of fact which is to be

determined in the light of surrounding circumstances of each case. It is well settled that

even in case of abandonment of service, unless the service conditions make special

provisions to the contrary, employer has to give notice to the workman calling upon him to

resume duties and where he fails to resume duties, to hold an enquiry before terminating

services on such ground.

In somewhat similar circumstances a Division Bench of this court comprising

P.B.Sawant, J.(as he then was) and V.V.Vaze, J. in the cae of Gaurishanker Vishwakarma v.

Engle Spring Industries Pvt. Lted. Observed thus: “…..it is now well settled that even in the

case of the abandonment of service, the employer has to give a notice to the workman

calling upon him to resume his duty and also to hold an enquiry before terminating his

service on that ground. In the present case the employer has done neither. It was for the

employer to prove that the workman had abandoned the service….. It is therefore difficult

to believe that the workman who had worked continuously for six to seven years, would

abandon his service for no rhyme or reason. It has also to be remembered that it was the

workman who had approached the Government Labour Officer with a specific grievance

that he was not allowed to join his duty. It was also his grievance that although he had

approached the company for work from time to time, and the company’s partner Anand had

kept on promising him that he would be taken in service, he was not given work and hence

he was forced to approach the Government Labour Officer. In the circumstances, it is

difficult to believe that he would refuse the offer of work when it was given to him before

the Labour Officer….”

In the present case, admittedly, no notice had been issued by the respondents to the

petitioner calling upon him to resume his duties and no enquiry had been conducted against him

before terminating his services. Therefore, in view of the law laid down (supra), and also in the

absence of any evidence on record, it cannot be said that the petitioner had left the job at his own.

17. Now, the next question which arises for consideration before this Court is as to

whether the services of the petitioner as beldar had been terminated illegally. Admittedly, the

petitioner was engaged as beldar on daily wages basis in the year, 1992 and he worked as such till

the year, 1999. RW-1 Shri Jai Lal Kanta, Junior Engineer has tendered in evidence the mandays

chart of the petitioner Ex. RW-1/B. The perusal of mandays chart Ex. RW-1/B goes to show that

the petitioner had worked for 30 days in the year, 1992, 350 days in the year, 1993, 324 days in

1994, 324 days in 1995, 327 days in 1996, 305 ½ days in 1997, 311 days in 1998 and 220 days in

the year, 1999 ( till 9/99). The perusal of mandays chart Ex. RW-1/B further shows that the

petitioner had completed more than 240 days in twelve calendar months preceding his termination.

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. 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. It has been held by our own Hon’ble High Court in Latest HLJ 2007 (HP)

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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. In the present case also admittedly the respondents had not complied with the

conditions precedent to the retrenchment as per section 25-F of the Act which are mandatory in

nature. Hence, In view of the law laid down by the Hon’ble Supreme Court and our own Hon’ble

High Court (supra) and my foregoing observations, I have no hesitation in holding that the

termination of the services of the petitioner during September, 1999, by the respondents without

complying with the provisions of section 25-F of the Act, is illegal and unjustified.

19. The learned counsel for the petitioner also contended that at the time of the termination

of the petitioner, the respondents had retained his juniors who are still working and besides this

even fresh persons have been engaged by the respondents as such the respondents had violated the

principles of “last come first go”. However, the petitioner as PW-1 nowhere has stated that juniors

to him have been retained and fresh persons have been engaged by the respondents. Thus, in the

absence of any evidence on record, the petitioner has failed to prove that his juniors have been

retained and are still working with the respondents. Hence, the case of the petitioner does not fall

under section 25-G and 25-H of the Act.

20. Therefore, in view of my foregoing discussion, I have no hesitation in holding that the

termination of the services of petitioner during September, 1999 by the respondents is illegal and

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

respondents.

Issue no.2

21. Since I have held under issue no.1 above that the termination of services of the

petitioner by the respondents without complying the provisions of the Act is illegal and unjustified,

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hence, the petitioner is held entitled to reinstatement in service as beldar with seniority and

continuity.

22. Now, the question which arises for consideration, before this Court is as to whether the