jkti=] fgekpy izns'k

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

cq/kokj 22 Qjojh] 2017@3 QkYxqu] 1938

fgekpy izns'k ljdkj

INDUSTRIES DEPARTMENT

NOTIFICATION

Shimla-2, the 17^th February, 2017

No. Ind-A(B)2-5/2009-I.—The Governor, Himachal Pradesh is pleased to constitute a Sub-

Committee to discuss the aspects regarding sale of old stock of finished material of Nurpur

Silk Mills in one-go on reduced rates, possibility of sale of silk material through Sericulture

223&jkti=@2017&22&02&2017

¼7299½

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Department. The Sub-Committee will also examine as to whether the Nurpur Silk Mills can be

transferred to Sericulture Department (Industries Department) and may also suggest further course

of action for its survival. The constitution of Sub-Committee will be as under:—

1. Director of Industries

Chairman

Himachal Pradesh.

2. Managing Director

Member

HP General Industries Corporation.

3. Special Secretary (Finance) to the

Member

Govt. of Himachal Pradesh.

4. Dy. Director Sericulture

Member

Department of Industries, HP.

5. Manager, Nurpur Silk Mills

Member Secretary

Nurpur, Distt. Kangra.

The Sub-Committee will give its report within 02 months.

By order,

Sd/-

Principal Secretary (Inds.).

________

INDUSTRIES DEPARTMENT

A-Section

NOTIFICATION

Shimla-171002, the 18^th February, 2017

No. Ind.-A(B)1-1/2016.—The Governor, Himachal Pradesh, is pleased to order transfer and

posting of the following Officers, with immediate effect, in public interest:—

1. Shri Tilak Raj Sharma, Joint Director (SWCA), Baddi, Distt. Solan is transferred and

posted at Directorate of Industries, H. P. alongwith post.

2. Shri Anshul Dhiman, General Manager, DIC, Una, Distt. Una is transferred and posted

as Deputy Director SWCA, Baddi, Distt. Solan. He shall also hold the additional

charge of General Manager, DIC, Una till further orders.

The above officers are directed to report for duty at their new place of posting immediately

and submit joining report to this Department as well as to the Director of Industries.

By order,

R. D. DHIMAN

Principal Secretary (Inds.).

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LABOUR AND EMPLOYMENT

NOTIFICATION

Dharamshala, the 14^th December, 2016

No.Shram (A) 6-2/2014 (Awards).—In exercise of the powers vested under section

17(1) of the Industrial Disputes Act,1947, the Governor Himachal Pradesh is pleased to order the

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

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

Himachal Pradesh:—

Sr.No. Ref. No.

Petitioner

Respondent

Date of

Award/Order

428/15

Raj Kumar

E.E. HPPWD, Killar

21-09-2016

427/15

Vipan

E.E. HPPWD, Killar

21-09-2016

426/15

Nand Lal

E.E. HPPWD, Killar

21-09-2016

432/15

Amarjeet

E.E. HPPWD, Killar

21-09-2016

429/15

Man Dei

E.E. HPPWD, Killar

21-09-2016

425/15

Kamla Devi

E.E. HPPWD, Killar

21-09-2016

430/15

Bhag Singh

E.E. HPPWD, Killar

21-09-2016

458/15

Mangi Lal

E.E. HPPWD, Killar

21-09-2016

327/15

Bhadar Singh

E.E. HPPWD, Killar

21-09-2016

10.

331/15

Ram Chand

E.E. HPPWD, Killar

21-09-2016

11.

335/15

Neel Kanth

E.E. HPPWD, Killar

24-10-2016

12.

339/15

Jaishree

E.E. HPPWD, Killar

24-10-2016

13.

342/15

Bhan Chand

E.E. HPPWD, Killar

24-10-2016

14.

379/15

Kesi Ram

E.E. HPPWD, Killar

24-10-2016

15.

381/15

Champa Kumari

E.E. HPPWD, Killar

24-10-2016

16.

452/15

Sunita

E.E. HPPWD, Killar

24-10-2016

17.

453/15

Dharam Dei

E.E. HPPWD, Killar

24-10-2016

18.

454/15

Man Chand

E.E. HPPWD, Killar

24-10-2016

19.

460/15

Neeta Kumari

E.E. HPPWD, Killar

24-10-2016

20.

363/16

Satpal Singh

G.M.M/S I.D. Sood Ispat

25-10-2016

21.

364/16

Rajneesh Pathania

G.M. M/S I.D. Sood Ispat

25-10-2016

22.

385/15

Mahajan Ram

E.E. HPPWD, Killar

26-10-2016

23.

191/13

Meena Devi

E.E.HPPWD,

Joginder

Nagar

26-10-2016

24.

205/13

Besar

E.E.HPPWD,

Joginder

Nagar

26-10-2016

25.

99/15

Bhagat Ram

E.E.HPPWD, Killar

28-10-2016

26.

108/15

Banka Ram

E.E.HPPWD, Killar

28-10-2016

27.

431/15

Sujan Singh

E.E.HPPWD, Killar

28-10-2016

28.

324/15

Sher Chand

E.E.HPPWD, Killar

28-10-2016

29.

304/15

Madan Lal

E.E.HPPWD, Killar

28-10-2016

30.

279/15

Ram Kumar

E.E.HPPWD, Killar

28-10-2016

By order,

Sd/-

Pr. Secretary ( Lab. & Emp.).

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 428/2015

Date of Institution : 11.09.2015

Date of Decision : 21.09.2016

Shri Raj Kumar s/o Shri Nant Ram, r/o Village Karoti, P.O. Killar, Tehsil Pangi, District

Chamba, H.P.

. .Petitioner.

Versus

Executive Engineer, I.&P.H/H.P.P.W.D. Division Killar, Tehsil Pangi, District Chamba,

H.P.

. .Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. Rajeev Dharmani, Adv.

For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

The reference given below has been received from the appropriate Government for

adjudication:

“Whether the industrial dispute raised by the worker Shri Raj Kumar S/O Shri Nant Ram,

R/O Village Karoti, P.O. Killar, Tehsil, Pangi, District Chamba, H.P. before the Executive

Engineer, I.&P.H./H.P.P.W.D. Division Killar, Tehsil Pangi, District Chamba, H.P. vide

demand notice dated-nil-received in the office on 22.11.2011 regarding his alleged

illegal termination of service during October, 2004 suffers from delay and latches? If

not, Whether termination of the services of Shri Raj Kumar S/O Shri Nant Ram, R/O

Village Karoti, P.O. Killar, Tehsil, Pangi, District Chamba, H.P. by the Executive

Engineer, I.&P.H./H.P.P.W.D. Division Killar, Tehsil Pangi, District Chamba, H.P.

during October, 2004 without complying the provisions of the Industrial Disputes Act,

1947, is legal and justified? If not, what amount of back wages, seniority, past service

benefits and compensation the above aggrieved workman is entitled to from the above

employer?”

On receipt of reference from appropriate government, notices were issued to the

parties in pursuance to which claimant/petitioner has filed statement of claim.

Brief facts as enumerated in the present claim petition by the petitioner above

named revealed that he had been initially engaged as daily wage beldar on muster roll basis in the

year 1988 who continuously worked till 2004 with the respondent. Averments made in the

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

criteria prescribed for tribal area of Pangi Tehsil District Chamba and became eligible for

continuous service envisaged under statutory provisions of Section 25-B of the Industrial Disputes

Act, 1947 (hereinafter referred to as ‘the Act’ for brevity). Averments made in the petition

revealed that the services of petitioner had been interrupted by way of intermittent/artificial

breaks given by the respondent/department deliberately and as such breaks are required to be

counted as ‘continuous services’ for the purposes of calculation of 160 days for the applicability of

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Section 25-B of the Act. The grievance of petitioner remains that respondent/department had

terminated/disengaged petitioner from daily wage service orally without issuing one month’s

notice in writing stipulating therein reason for retrenchment besides no retrenchment

compensation was paid to petitioner while respondent had been illegally terminated. It is

also alleged that respondent had not followed the provisions of Section 25-F of the Act

while disengaging petitioner from service. It is stated that petitioner is very poor who has no

source of income besides after termination of the services of petitioner, petitioner had

approached the respondent time and again but of no avail. The grievance of petitioner further

remains that when the services of petitioner had been terminated, respondent/department had

reengaged number of new workman from time to time and while doing so, respondent had not

followed the principle of ‘Last come, First go’ envisaged under Section 25-G of the Act. It is

further alleged that respondent/department had continuously retained junior to petitioner who

are still in service namely Suraj Ram who appointed in 1997, Chunku Ram in 2000, Budhi Ram

in 2003 and Dev Raj in 2007. The claimant/petitioner claimed that he had spotless service record

who never been charge-sheeted for any act of indiscipline or negligence or his conduct and even

at the time of verbal termination, no charge-sheet had been served upon him and the at the same

time, no opportunity of hearing had been afforded to him. The petitioner also alleges that he has

remained unemployed ever since his illegal termination from month of 2004 till the date of

institution of present claim petition who had been nowhere gainfully employed and was thus

entitled for full back wages. Accordingly alleging respondent to have committed violation of

statutory provision of Section 25-F, Section 25-G and Section 25-H of the Industrial Disputes

Act, 1947 and thus petitioner prays for setting aside oral order of termination/retrenchment of

respondent in the month of September, 2004. He further prayed for reinstatement in service

w.e.f. year 2004 along-with back wages, seniority including continuity in service as petitioner as

he had remained unemployed since the date of his illegal termination. The petitioner has also

prayed that period of intermittent/fictional breaks deliberately given time and again during

entire service of petitioner between 1988 to 2004 be counted 160 days continuous service

and regularization of the service of petitioner w.e.f. 01.01.2004 having completed 8 years of

service and to any other relief petitioner is entitled.

The respondent contested claim petition, filed reply inter-alia taken preliminary

objections of maintainability, claim petition being bad on account of delay and laches. On merits

denied that petitioner had worked for more than 160 days in each calendar year rather clarified by

stating that petitioner was engaged as daily waged beldar in 1990 who remained engaged till

2004 but had worked intermittently as petitioner used to come and attend the work at his own

sweet will and convenience. Relying upon the mandays chart, it has been categorically pleaded

by the respondent that petitioner had not completed 160 days in each calendar year as required for

tribal area of Pangi Tehsil. The allegations of fictional breaks given by respondent to the

petitioner have been specifically denied. In so far as engagement of persons junior to

petitioner mentioned in para no. 10 of the claim petition were appointed as per order of Labour

Court and no other juniors to the petitioner had been retained in service by the respondent. On the

plea of termination of service of petitioner, respondent specifically alleges that petitioner had left

the job at his own will therefore serving of notice or pay in lieu thereof was not required.

Reiterating its stand respondent has maintained that petitioner had left the work of his own

sweet will and the persons mentioned in para no.10 are stated to have engaged as per

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

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

terminated in 2004 he would have definitely raised industrial dispute immediately and that after

seven years petitioner is stated to be agitating the matter which is bad on account of delay and

laches. It is also contended that since the services of petitioner had not been terminated by the

respondent, question of issuance of notice or wages in lieu thereof did not arise and at the same

time, there was no necessity for charge-sheet or issuing any notice of petitioner after his

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termination. It is contended that petitioner was agriculturist and gainfully employed and was

thus not entitled for back wages.

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

petition. Further asserted that provisions of Limitation Act did not eclipse the claim of

petitioner in totality besides allegation of violation of principle of ‘Last come First go’ was

specifically denied.

In order to prove his case, petitioner had examined himself as PW1 tendered/proved

his affidavit Ex. PW1/A under Order 18 Rule 4 CPC, copy of demand notice Ex. PW1/B, copy

of order dated 30.7.2015 Ex. PW1/C and closed evidence. On the other hand, repudiating the

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

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

petitioner Ex. RW1/B, Ex. RW1/C copy of mandays chart of co-workers, Ex. RW1/D1 to Ex.

RW1/D4 copy of orders/awards and closed the evidence.

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

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

From the contentions raised, following issues were framed on 16.02.2016 for

determination:

Whether the industrial dispute raised by petitioner vide demand notice dated nil qua

his termination of service during October, 2004 by respondent suffers from the vice of

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

. .OPP.

Whether termination of the services of the petitioner by the respondent w.e.f.

October, 2004 is/was illegal and unjustified as alleged?

. .OPP.

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

entitled to?

. .OPP.

Whether the claim petition is not maintainable in the present form as alleged?

. .OPR.

Relief.

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

Issue No.1: Yes

Issue No.2 :

Yes

Issue No.3 : Discussed

Issue No.4 : No

Relief:

Petition is partly allowed awarding compensation Rs.1,40,000/- per operative

part of award.

REASONS FOR FINDINGS

ISSUES NO.1 TO 3

10. All these issues have been taken up together for discussion being interconnected

which can be disposed of simultaneously without repetition of evidence.

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11. Relationship of petitioner having been engaged as daily waged beldar by respondent

on muster roll basis in the year 1990 continuously worked till October, 2004 with the

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

settlement of terms and conditions by the respondent. It is equally not in dispute that no written

order was passed while terminating service of the petitioner as claim of respondent remains

that it had not retrenched petitioner from service who had abandoned the job of his own and

used to work intermittently as per his own wish and convenience. Admittedly, the reference of

appropriate govt. does not relate to plea of fictional breaks but only with regard to petitioner’s

termination from service. In the backdrop of foregoing admitted facts on record, claim of

petitioner requires to be adjudicated with a view to determine if petitioner is entitled for relief

of reinstatement and back wages along-with seniority and past service benefits and compensation

as claimed by him.

12. Stepping into witness box as PW1 has sworn in affidavit Ex. PW1/A reiterating and

reaffirming his pleadings as stipulated in claim petition. In his affidavit he has claimed to have

worked with the respondent/department for more than 160 days in Pangi Sub Division Chamba

District and remained engaged from 1990 to October, 2004. He has also stated on oath that no

notice under Section 25-F of the Act was given by the respondent before terminating his service

and at the same time no compensation in lieu thereof notice period was paid to him and thus

his termination was illegal and void entitling petitioner benefit of reinstatement of service with

full back wages and all the other consequential service benefits. The petitioner has further

alleged on oath that respondent/department after terminating his services in October, 2004 by

oral order had engaged several co-workers who were junior to petitioner were retained in

service. Not only this, the persons who were junior to petitioner are stated to have been

regularized in service and thus respondent had not followed the mandate of Sections 25-G and 25-

H of the Act which was obligatory on its part. The case of petitioner also remains that he had

served

respondent

with

due

diligence

and

had

spotless

service

record

respondent/department had never called any explanation or raised charge- sheet against him but

even while retrenching petitioner from service, no notice was given. The petitioner has also

explained reason for not approaching the authorities under Labour Act and thereafter before

this Tribunal, as there existed no road between Chamba town to Pangi Tehsil till 2011 and

petitioner had moved before the Labour Officer raising demand notice consequent upon which

a failure report was submitted and as the Labour Commissioner did not make reference for

industrial dispute raised by petitioner, the petitioner had moved before the Hon’ble High Court

by filing CWP where direction was passed for making reference to the Labour Court due to

which delay had occurred and same was satisfactorily explained.

13. In so far as plea of abandonment raised by respondent is concerned, the same merits

rejection in view of the fact that respondent had failed to produce any record by which it could be

established that whenever petitioner absented from his duty as also reflected in mandays chart

Ex. RW1/B any notice or letter was ever issued. On this point respondent as RW1 has

specifically admitted that whenever petitioner abandoned the job, no notice had been issued. RW1

specifically admitted that no departmental inquiry was initiated against petitioner even after

October, 2004. No reason whatsoever has been assigned for such any action or omission on the part

of respondent in not initiating any departmental proceedings or making correspondence calling

upon the petitioner to join service. This prima facie belies the stand taken by the respondent as

abandonment has to be proved like any other fact in issue. The petitioner, on the other hand, as

PW1 in cross-examination has specifically denied that he used to leave the job in between and

attended the work intermittently rather he has claimed that intermit breaks had been

deliberately given to him by the respondent in the service record of petitioner so that petitioner

did not complete 160 days of work as required for Pangi Tehsil area and also for applicability of

Section 25-B of the Act. As such, in absence of any specific and reliable evidence led by

respondent, it would be unsafe to hold that respondent had established plea of abandonment.

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14. A bare glance on the mandays chart Ex. RW1/B would reveal that petitioner had

worked for 160 days in the year 1990, 91 days in 1996, 159 days in 1997, 165 days in 1998,

136.5 days in 1999, 134 days in 2000, 112 days in 2001, 90 days in 2002, 118 days in 2003 and

138 days in 2004 and thus a total of his service in 1990 to 2004 in 10 years he had worked for

1303.5 days in his entire service period. Be it noticed that except the years 1996, 1997 & 1999 to

2004 petitioner had worked for more than 160 days and as there is no reference from the Labour

Commissioner, Shimla on the point of artificial breaks, this court is to confine its findings

only with regard to alleged illegal termination. It is evident from mandays chart Ex. RW1/B that

in the year 2004 the petitioner had merely worked for 138 days and thus immediately in preceding

12 calendar months from the month of termination of petitioner had not rendered service of 160

days so as to meet requirement of law of having continuous service of one year and thus it was not

at all required from respondent to have issued a notice envisaged under Section 25-F of the Act.

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

15. Ld. counsel for petitioner has contended with vehemence that large number of

workers who were junior to petitioner had been appointed and these workers have been retained

in service and regularized. The grievance of petitioner remains that principle of ‘Last come

First go’ was not followed as the juniors were retained and services of petitioner despite being

senior was terminated without any valid reason. Ex. RW1/C is the year-wise mandays of daily

waged workers who were junior to the petitioner and had joined in the year 1997 or thereafter.

All of these co- workers shown in Ex. RW1/C the year-wise mandays details of workers of

Division HPPWD Killar were certainly junior to petitioner who were given sufficient work

existing in those years more than 200 days in a year whereas the petitioner had been not given

muster roll for the whole month. Ex. RW1/C also established that all the co-workers shown in this

document have worked for more than 160 days in most of the years although they were junior

to petitioner. Evidently, there is no iota of evidence of respondent establishing that petitioner

was called upon to join for service at any time after October, 2004 even at the time when

junior persons were reengaged. That being so the respondent had certainly violated the

provisions of Section 25-G of the Act as the juniors workers mentioned in para no.10 of the

affidavit were retained whereas petitioner was senior from these co-workers having joined service

in 1990 was terminated and even thereafter respondent omitted to afford opportunity to

petitioner for reemployment for work which also violates the provisions of Section 25-H of the

Act. Ld. counsel for petitioner has placed reliance upon judgment of Central Bank of India vs. S.

Satyam, 1996 (5) SCC 419 in which Hon’ble Apex Court has held that for the applicability of

Section 25-G and 25-H of the Act, there was no necessity of claimant/petitioner to have

worked for 240 days as in case of provisions of Section 25-F of the Act.

16. Repudiating claim of petitioner, the respondent, on the other hand, has made futile

attempt to justify engagement of junior workers and their retention in service on the basis of

orders of Labour Court-cum- Industrial Tribunal as well as Hon’ble High Court of H.P. as

reflected in Ex. RW1/D1 to Ex RW1/D4. These judgments/orders have been gone through which

revealed that respondent had wrongly terminated the services of those claimant/petitioner and

for said reasons they were directed to be reinstated. Thus, plea that persons were directed to be

appointed in pursuance to awards/orders Ext. RW1/D1 to Ex. RW1/D4 were primarily on the

basis of court orders would not defeat the claim of the petitioner as status of these person being

junior to petitioner does not get negatived. As such, even when petitioner is proved to have not

worked for more than 160 days in preceding 8 years which entitled him for regularization of his

service per government policy, yet respondent is not absolved from its accountability of

provisions of Section 25-G and 25-H of the Act and as such it is held that respondent had

violated the provisions of Sections 25-G and 25-H of the Industrial Disputes Act.

17. Ld. counsel for petitioner has contended that after petitioner’s termination in

October, 2004, he had remained unemployed and was not earning anything thereafter as such

7307

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was entitled for full back wages. Repudiating the arguments of ld. counsel of petitioner, ld. Dy.

D.A. for the State has taken this court through cross-examination of the petitioner who has

admitted that he had cultivatable land with him and also worked a private labourer. Thus,

plea of having remained not gainfully employed gets belied admission of petitioner in cross-

examination in which he had maintained that he had been earning from agricultural land as well as

he has been working as daily wager privately. Reliance has been placed on the judgment of

Hon’ble Apex Court North East Karnataka Road Transport Corporation vs. M. Nagangouda

(2007) 10 SCC 765 in which Division Bench comprising of Justice A.R. Lakshmanan and

Justice Altamas Kabir had held that ‘term gainfully employment would also include self

employment wherefrom income is generated. It was income either from employment in an

establishment or from self employment merely differentiates the sources from which

income is generated, the end use being the same’. Applying the ratio of judgment of 2007

(supra) to this case since the petitioner was earning from his agricultural and manual pursuits,

the same were sufficient to maintain him and his family. It is thus held that petitioner was

gainfully employed. Be it stated here that Hon’ble Apex Court in Deepali Gundu Surwase’s

case has held that the Labour Court was not justified in holding that merely because the

respondent was receiving agriculture income, he cannot be treated to be engaged in gainful

employment. Since the petitioner had income from agriculture pursuits for his livelihood it

cannot be stated that petitioner was not gainfully employed and thus would not be entitled full

back wages. In view of the forgoing discussion, it is held that the relationship of workman and

employer existed between petitioner and respondent and that petitioner was illegally

retrenched without compliance of Section 25-G and Section 25-H of the Act although remained

gainfully employed after his retrenchment. Thus, applying the ratio of judgment of Hon’ble

Apex Court (2007 supra), it may not be erroneous to hold that petitioner was gainfully

employed and thus would be not entitled for back wages for the period he was out of job on

being terminated by the respondent.

18. Lastly, Ld. Dy. D.A. for State has contended with vehemence that there is inordinate

and explained delay which disentitles petitieonr relief claimed for by him. On the other hand, ld.

counsel for the petitioner has relied upon the judgment of Hon’ble Apex Court titled

Raghubir Singh vs. General Manager, Haryana Roadways, Hissar reported in 2014 Lab IC

4266 (SC) and the relevant paras of the judgment are produced below for reference:

“12. Therefore, in our considered view, the observations made by this Court in the

Rajasthan State Agriculture Marketing Board case (supra) upon which the learned

Additional Advocate General for the State of Haryana has placed reliance cannot be

applied to the fact situation of the case on hand, for the reason that the Labour Court has

erroneously rejected the reference without judiciously considering all the relevant factors

of the case particularly the points of dispute referred to it and answered the 2nd issue

regarding the reference being barred by limitation but not on the merits of the case. The

said decision has no application to the fact situation and also for the reason the catena

of decisions of this Court referred to supra, wherein this Court has categorically held that

the provisions of Limitation Act under Article 137 has no application to make reference

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

of existing industrial dispute between workmen and the employer.

13. In the case on hand, no doubt there is a delay in raising the dispute by the

appellant; the Labour Court nevertheless has the power to mould the relief

accordingly. At the time of adjudication, if the dispute referred to the Labour

Court is not adjudicated by it, it does not mean that the dispute ceases to exist.

The appropriate government in exercise of its statutory power under Section 10(1)(c) of

the Act can refer the industrial dispute, between the parties, at any time, to either the

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jurisdictional Labour Court/Industrial Tribunal as interpreted by this Court in the Avon

Services case referred to supra. Therefore, the State Government has rightly exercised its

power under Section 10(1)(c) of the Act and referred the points of dispute to the

Labour Court as the same are in accordance with the law laid down by this Court

in Avon Services & Sapan Kumar Pandit cases referred to supra.

14. Further, the workman cannot be denied to seek relief only on the ground of

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

District Manager, Karnataka[4] it was held by this Court as follows—

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

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

appellants. We cannot agree...... In Ratan Chandra Sammanta and Ors. v. Union of India

and Ors. (supra)1993 AIR SCW 2214, it was held that a casual labourer retrenched by

the employer deprives himself of remedy available in law by delay itself, lapse of time

results in losing the remedy and the right as well. The delay would certainly be fatal if

it has resulted in material evidence relevant to adjudication being lost and rendered not

available. However, we do not think that the delay in the case at hand has been so

culpable as to disentitle the appellants for any relief.....” (Emphasis laid by the Court) In

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

of the industrial dispute made in the case on hand by the State Government to the Labour

Court to adjudicate the existing industrial dispute between the parties was made within a

reasonable time, considering the circumstances in which the workman was placed, firstly,

as there was a criminal case pending against his 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.

In the case of Ajaib Singh v. The Sirhind Co- Operative Marketing Cum- Processing

Service Society Limited & Anr.[5] this Court has opined that relief cannot be denied to the

workman merely on the ground of delay, stating that:—

“10. It follows, therefore, that the provisions of Article 137 of the Schedule to

Limitation Act, 1963 are not applicable to the proceedings under the act and that the

relief under it cannot be denied to the workman merely on the ground of delay. The

plea of delay if raised by the employer is required to be proved as a matter of fact

by showing the real prejudice and not as a merely hypothetical defence. No reference to

the labour court can be generally questioned on the ground of delay alone. Even in a case

where the delay in shown to be existing, the tribunal, labour court or board, dealing with

the case can appropriately mould the relief by declining to grant back wages to the

workman till the date he raised the demand regarding his illegal retrenchment/

termination or dismissal. The Court may also in appropriate cases direct the payment of

part of the back wages instead of full back wages.....” (Emphasis laid by the Court)

16. Hence, we are of the opinion, having regard to the fact and circumstances of the

case that there is no delay or latches on the part of the workman from the date of his

acquittal in the criminal case. Thereafter, upon failure of the respondent in adhering to

the assurance given to the workman that he would be reinstated after his acquittal from

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the criminal case, the workman approached the conciliation officer and the State

Government to make a reference to the Labour Court for adjudication of the dispute with

regard to the order of dismissal passed by the respondent. Keeping in mind the date of

acquittal of the appellant and the date on which he approached the conciliation officer by

raising the dispute, since the respondent had not adhered to its assurance, the State

Government had rightly referred the dispute for its adjudication. Therefore it cannot be

said that there was a delay on the part of the appellant in raising the dispute and

getting it referred to the Labour Court by the State Government.

17. Further, the Labour Court on an erroneous assumption of law framed the

additional issue regarding the limitation in raising the dispute and its reference by

the State Government to the Labour Court. Thus, the Labour Court has ignored

the legal principles laid down by this Court in the cases referred to supra. The award

passed by the Labour Court was accepted erroneously by both the learned single

Judge and the Division Bench of the High Court by dismissing the Civil Writ Petition &

the Letters Patent Appeal without examining the case in its proper perspective, keeping

in view the power of the State Government under Section 10(1)(c) and the object and

intendment of the Act. Not adjudicating the existing industrial dispute on merits between

the parties referred to it may lead to disruption of industrial peace and harmony, which is

the foremost important aspect in Industrial Jurisprudence as the same would affect the

public interest at large.

19. Ld. Dy. D.A. representing respondent department has also contended with

vehemence that claim petition is barred by limitation on account of delay and laches. It has

been pointed that termination of petitioner in this case took place on 2004 and the industrial

dispute was raised after several years of retrenchment. Repudiating the argument by ld. counsel,

ld. AR for the petitioner has placed reliance upon judgment reported in 2007 LHLJ 903 Hon’ble

High Court of H.P. (Bhatag Ram’s case) in which it has been held that delay in raising dispute

may be considered by court at the time of granting final relief however in various other

judgments even longer delay has been condoned. In Divisional Manager, HPFC & another

vs. Garibu Ram, Latest HLJ 2007 (HP) 1160, delay of more than 10 years was condoned

besides Hon’ble High Court has held that principle of Limitation Act is not applicable to

the industrial dispute. Similar view was taken by Hon’ble Apex Court in Ajayab Singh vs.

Sirhind Co-operative Marketing-cum-Processing Society Limited and Another, (1999) 6

SCC 82 in which it has been held that the principle of Limitation Act, 1963 did not apply to the

proceeding under the Industrial Disputes Act.

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

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

counsel for petitioner, ld. Dy. D.A. has placed reliance upon the judgment of Hon’ble Apex

Court titled as Assistant Engineer, Rajasthan State Agriculture Marketing Board, Sub-

Division Kota and Mohan Lal [2013 (139) FLR 125], the relevant para of the judgment are

produced below for reference:

Industrial Disputes Act, 1947-Sections 25-F and 10-Limitation Act, 1963- Section 5-

Industrial dispute-Termination of service-Finding of Lboaur Court that workman had

completed 240 days in calander year and her termination was in violation o section 25-F

of the I.D.Act- Wrokman worked from 1.11.1984 to 17.2.1986 in all 286 days during

employment. her services terminated on 18.2.1986. Industrial dispute raised after 6 years

of termination. Admitted delay of 6 years not kept in view by the Labour Court- Judicial

discretion exercised by the Labour Court flawed and unsustainable. Reinstatement of the

workman not the appropriate relief. In lieu of reinstatement compensation of Rs.one lac

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directed to be paid to the workman by the appellant-employer within six weeks failing

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

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

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

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

important circumstances which the Labour Court must keep in view before

granting relief”.

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

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

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

Court held that a Court may pass an order of reinstatement by awarding compensation but the

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

be granted in a situation where the industry is closed or that employees has superannuated or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

was not through regular mode of recruitment and applying the ratio of this judgment AIR 2015

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

sufficient for redressal of grievance of the claimant/petitioner. Similarly, in 2016 (1) Him. L.R.

502 titled as State of Himachal Pradesh and another vs. Chaman Singh relied by ld. AR for

petitioner interpretation of Section 137 of Limitation Act was involved which provides that

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

Judgment 652 (SC) similar view was reiterated which clearly mandates that claimant/petitioner

cannot be denied relief sought for merely on the ground of delay and laches. That being so, the

law remains as it was that ground of delay and laches, claimant/petitioner cannot be denied

relief rather the court has to consider various aspects before moulding relief and the case in hand

it would not be erroneous to mention here that the claimant/petitioner can be reasonably

indemnified by ordering compensation and not by reinstatement. In so far as judgment of AIR

2015 SC 1373 titled as Mackinon Machenize & Company Ltd. vs. Mackinon Employees

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Union is concerned, the Hon’ble Apex Court has held on closure of unit of company principle of

‘Last come First go’ was not followed which violated Section 25-G of Industrial Disputes Act and

retrenchment was held illegal entitling petitioner for retrenchment compensation. Since the facts of

case of Mackinon Machenize’s case are different from case in hand as in former closure of

unit of company was involved whereas in case in hand before this court, there is no closure of

company rather it is the department of HPPWD which had engaged petitioner without following of

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

petitioner had abandoned the job who never reported for duty. As such, when there is no closure

of any unit by respondent which the petitioner was engaged, judgment of Mackinon Machenize

cannot be made applicable.

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

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

aspect/circumstance which court has to keep in mind while exercising discretion. In para nos. 20

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

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

provides that before exercising its judicial discretion, the Labour Court or Tribunal has to keep in

mind all relevant factors including the mode and manner of appointment, nature of

employment, length of service, the ground on which termination has been set aside and delay

in raising industrial dispute before grant of relief. It was observed by the Hon’ble Apex

Court in judgment (2013 supra) before that workman had worked for 286 days and had raised

industrial dispute in 1992 whereas her services have been terminated in 1986 and she raised

industrial dispute after six years. The Hon’ble Apex Court has held that though compensation

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

the Division Bench but surely reinstatement of the workman in the facts and

circumstances is not the appropriate relief and thus Hon’ble Apex Court awarded a lump-sum

of Rs.1 lakh along-with interest @ 9% per annum if the respondent failed to make payment

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

court factors which have weighed are that the petitioner in all remained engaged for about 10

years and actually worked for 1303.5 days as per mandays chart on record and that the services

of petitioner were disengaged in October, 2004 who worked as non skilled worker and had

raised industrial dispute by issuance of demand notice after about seven years i.e. demand

notice was given dated nil. Taking into consideration factors mentioned above in pursuance to

judgments of Hon’ble Apex Court referred to above, petitioner would not be entitled either for

reinstatement or for back wages but a lump-sum compensation would be appropriate relief in

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

petitioner on the matter of delay and laches is more or less settled law that claim of the petitioner

could not be solely declined on the ground of delay and laches. Similarly, judgment of Hon’ble

Apex Court in 2014 titled as Raghubir Singh’s case also does not come to the rescue of the

petitioner as in this judgment also the Hon’ble Apex Court has reiterated the mandate as given

by the Hon’ble Apex Court in previous judgment in the year 2013 i.e. Assistant Engineer,

Rajasthan State Agriculture Marketing Board, Sub-Division Kota and Mohan Lal’s case. I

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

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

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

23. In view of foregoing discussion, a lump-sum compensation of Rs.1,40,000/- (Rupees

one lakh forty thousand only) would be an appropriate relief to which the petitioner is

entitled in the facts and circumstances of the case as stated above. It is further made clear

that amount of compensation shall be paid within four months from the date of Award failing

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

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

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ISSUE NO.4

24. On the plea of non-maintainability of the claim petition under Section 10 of the

Industrial Disputes Act, ld. Dy. D.A. representing respondent department has failed to allege in

reply in what manner petition is not maintainable. Thus, vague plea merits rejection outright.

Otherwise also, from pleadings and evidence on record, no inference of claim petition being not

maintainable could be raised against claimant/petitioner. This issue is decided in favour of

petitioner and against the respondent.

RELIEF

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

the compensation of Rs.1,40,000/- (Rupees one lakh forty thousand only) to the petitioner in lieu

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

compensation so awarded will be paid by the respondent to the petitioner within four months

from today failing which the respondent shall be liable to pay the interest @ 9% per annum on

the said amount from the date of award till the date of its realization. In the peculiar

circumstances of the case, the parties are left to bear their own costs.

26. The reference is answered in the aforesaid terms.

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

official gazette.

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

Announced in the open Court today this 21^st day of September, 2016.

(K. K. SHARMA),

Presiding Judge,

Labour Court-cum-Industrial Tribunal,

Kangra at Dharamshala, H.P.

___________

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

INDUSTRIAL TRIBUNAL, KANGRA AT DHARAMSHALA (HP)

Ref No. : 427/2015

Date of Institution : 11.09.2015

Date of Decision : 21.09.2016

Shri Vipan s/o Shri Gian Chand, r/o Village Kawas, P.O. Killar, Tehsil Pangi, District

Chamba, H.P.

. .Petitioner.

Versus

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

. .Respondent.

Reference under Section 10 (1) of the Industrial Disputes Act, 1947.

For the Petitioner : Sh. Rajeev Dharmani, Adv.

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For the Respondent : Sh. Sanjeev Singh Rana, Dy. D.A.

AWARD

The reference given below has been received from the appropriate Government for

adjudication:

“Whether the industrial dispute raised by the worker Shri Vipan S/O Shri Gian Chand

R/O Village Kawas, P.O. Killar, Tehsil Pangi, District Chamba, H.P. before the

Executive Engineer, H.P.P.W.D. Division, Killar, Tehsil Pangi, District Chamba, H.P. vide

demand notice dated-nil-received in the office on 31.10.2011 regarding his alleged illegal

termination of service during August, 2004 suffers from delay and latches? If not,

Whether termination of the services of Shri Vipan S/O Shri Gian Chand R/O Village

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

Engineer, H.P.P.W.D. Division, Killar, Tehsil Pangi, District Chamba, H.P. during

August, 2004 without complying 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 aggrieved workman is entitled to from the above employer?”

On receipt of reference from appropriate government, notices were issued to the

parties in pursuance to which claimant/petitioner has filed statement of claim.

Brief facts as enumerated in the present claim petition by the petitioner above

named revealed that he had been initially engaged as daily wage beldar on muster roll basis in the

year 1990 who continuously worked till 2005 with the respondent. Averments made in the