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7566

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7568

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

LABOUR AND EMPLOYMENT DEPARTMENT

NOTIFICATION

Shimla, the 29^th December, 2016

No.Shram (A) 6-4/2016 (Awards).—In exercise of the powers vested under section 17 (1)

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

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

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

Pradesh:—

Sr.

No.

Case

No:

Title of the Case

Date of

Award

27/2014

Shri Hira Singh V/s M/S SCL Infratech Limited, Gurgaon &

Ors.

73/2016

Shri Krishan Lal V/s H.P. State Forest Corporation Ltd.

Shimla-2, H.P.

37/2012

Shri Raghu Nandan katiyar V/s M/S Total Health Care,

Parwanoo District Solan H.P.

35/2012

Shri Hari Chand V/s M/S –do-

39/2012

Shri Dewan Chand V/s M/S –do-

38/2012

Shri Surinder Katiyar V/s M/S -do-

34/2012

Shri Rakesh Jaswal V/s M/S -do-

30/2014

Shri Ishwar Singh & Anr. V/s M/S Indo Farm Equipment

Limited, Baddi District Solan, H.P.

11/2012

Shri Hans Raj Barwal V/s Himachal Pradesh State Electricity

Board, Shimla & Anr.

10.

73/ 2014 Shri Dev Raj V/s Himachal Pradesh State Electricity Board,

Shimla & Ors.

By order,

R. D. DHIMAN, IAS,

Pr. Secretary (Lab. & Emp.).

____________

12.11.2016

Present :

Petitioner in person.

Sh. Twinkle Sirkeck, Assistant Manager HR for respondent.

With the efforts o Lok Adalat, the matter has been settled between the parties. It has been

stated by Shri Twinkle Sirkeck, Assistant Manager, HR that they are ready and willing to pay a

sum of Rs. 25,000/- (Rs. Twenty Five Thousand only) to the petitioner in lieu of full & final

settlement of the case arising out of the reference no. 27 of 2014. He further stated that the

aforesaid payment shall be made to the petitioner within a period of 30 days. To this effect his

statement recorded separately.

Vide separate statement, the petitioner has accepted a sum of Rs. 25,000/- (Rs. Twenty Five

Thousand only) to the petitioner in lieu of full & final settlement of the case arising out of the

reference no. 27 of 2014.

7569

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

Therefore, the reference is disposed of in view of the statements of the parties which shall

form a part of the award/order. The aforesaid payment shall be made to the petitioner within a

period of 30 days from today failing which the same shall carry interest @ 9% per annum. Let a

copy of this award/ order be sent to appropriate government for publication in the official gazette.

File, after completion, be consigned to records.

Announced:

12.11.2016

(Sushil Kukreja)

(Dr. Sushma Kaushal) (Dr. M.L. Kaushal)

Chairman

Member. Member.

Lok Adalat

4.11.2016.

Present :

None for petitioner.

Notice issued to the respondent not received back. Case called twice but none appeared on

behalf of the petitioner. It is 10:45 AM. Be awaited.

(SUSHIL KUKREJA)

Presiding Judge,

Labour Court, Shimla.

Case called again

Present :

None.

It is 12:50 PM. Case called again but none appeared on behalf of the petitioner. Be called

after lunch.

(SUSHIL KUKREJA)

Presiding Judge,

Labour Court, Shimla.

Case called after lunch

Present :

None.

Case called repeatedly in pre and post lunch sessions but none appeared on behalf of the

petitioner. For today, neither the petitioner nor his counsel appeared before this Court despite the

fact that on the last date of hearing Shri Sunil Sharma, Advocate had appeared on his behalf which

shows that the petitioner is not interested to pursue his claim arising out of the reference. Hence,

this Court is left with no other alternative but to decide the reference on the basis of material

whichever is available on file. The following reference has been received from appropriate

government for adjudication:

“Whether alleged termination of services of Shri Krishan Lal S/o Shri Hari Nand R/o

Village Rohiaina P.O Dharech, Tehsil Theog District Shimla HP during the year 1999

by the Divisional Manager HP State Forest Corporation Ltd. Forest working Division

Shimla-2, who has raised his industrial dispute after about 9 years allegedly without

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

justified? If not, keeping in view the delay of 9 years in raising the industrial dispute,

what amount of back wages, seniority, past service benefits and compensation the

above ex-worker is entitled to from the above employer?”

7570

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

From the aforesaid reference is the clear that the petitioner has alleged his termination

during the year, 1999 to be illegal and unjustified but he has failed to appear before this Court. The

aforesaid reference also makes it clear that the petitioner has raised the present dispute after about 9

years which seems that the petitioner is not serious about the present dispute. Therefore, in the

absence of any material on record, it cannot be said that the services of the petitioner had been

illegally terminated by the respondent during the year 1999. Hence, the reference is answered

against the petitioner and the award is passed accordingly. Let a copy of this order/award be sent to

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

to records.

Announced:

(SUSHIL KUKREJA),

4.11.2016.

Presiding Judge,

Labour Court, Shimla.

________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. No. 37 of 2012.

Instituted on.14.6.2012.

Decided on 5.11.2016.

Raghu Nandan Katiyar S/o Shri Mahadev Prasad R/o Village Ambota, Sector-5, Taksal,

Parwanoo, Tehsil Kasasuli, District Solan, HP.

Vs.

M/s Total Health Care, Sector-5, Taksal Parwanoo, Tehsil Kasauli, District Solan, HP

through its General Manager.

Reference under Section 10 of the Industrial Disputes Act, 1947

For petitioner : Ms. Kumud Thakur, Advocate vice Shri Ashwani Kondal, Advocate.

For respondent : Shri Alok Bhardwaj, Advocate.

AWARD

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

“Whether termination of the services of Shri Raghu Nandan Katiyar S/o Shri Mahadev

Prasad R/o Village Ambota, Sector-5, Taksal, Parwanoo, Tehsil Kasasuli, District Solan,

HP by the Occupier/Factory Manager M/s Total Health Care Plot no.17 Ambota, Sector-5,

Parwanoo, District Solan, HP w.e.f. 12.10.2010 without complying with the mandatory

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?”

In nutshell, the case of the petitioner is that he was appointed as peon-cum-helper by

the respondent in the month of August, 2009 and that on 11.10.2010, his services were terminated

7571

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

without any reason and cause and that too without giving notice as prescribed under section 25-F of

the Industrial Disputes act, 1947 (hereinafter referred to as Act). It is further stated that the

petitioner approached the respondent on number of occasion for his reengagement but neither he

was allowed to enter the gate of the factory nor assigned any reason for his illegal termination. On

12.10.2010, the petitioner issued demand notice claiming reinstatement along-with back-wages and

all consequential benefits but when nothing was received by the petitioner from the Labour

Commissioner, he approached the Hon'ble High Court and pursuant to order dated 4.5.2012 passed

in CWP No. 2819/2012, the matter was referred to this Court. The petitioner was drawing a salary

of ` 3800/- per month at the time of his termination and also contributed towards EPF. Against this

back-drop a prayer has been made that the petitioner be reinstated in service as fitter with seniority

and continuity along-with back wages.

3. The respondent contested the claim by filing reply wherein preliminary objections had

been raised qua maintainability of petition, abandonment of job, estoppel and that the petitioner had

not approached the Court with clean hands. On merits, it has been asserted that the services of the

petitioner had never terminated by the respondent but he abandoned the job at his own and even the

respondent had written several letters to the petitioner for resuming duties but he did not turn up. It

is further asserted that since, the petitioner is gainfully employed, he only wants to extract money

from the respondent. It is denied that the petitioner approached the respondent for his re-

engagement and he was not allowed to enter the gate of the factory and that since the services of

the petitioner have never been terminated, the respondent has no objection if he resume his duties.

The respondent prayed for the dismissal of the claim petition.

4. By filing rejoinder to the reply, the petitioner reaffirmed the allegations by denying

those of the respondent.

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

9.7.2013.

Whether the termination of the services of the petitioner w.e.f. 12.10.2010, without

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

unjustified as alleged?

...OPP.

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

to?

…OPP.

2. Whether this petition is not maintainable as alleged?

… OPR.

3. Whether this petition is time barred as alleged?

… OPR.

4. Whether the petitioner is estopped from filing this petition by his own acts, conduct

etc.?

… OPR.

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.

Becomes redundant.

No.

7572

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

No.

Not pressed.

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

of award.

Reasons for findings

Issue no. 1.

8. The learned counsel for the petitioner contended that the services of the petitioner had

been terminated in utter violation of the provisions of the Act as neither any notice was served upon

him nor he was paid any compensation.

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

the petitioner have never been terminated by the respondent, who himself abandoned his job

without intimation to the respondent. He further contended that the respondent is ready and willing

to re-instate the petitioner but he does not want to work and he only wants to extract money from

the respondent.

10. To prove issue no.1, the petitioner stepped into the witness box as PW-1 and tendered

in evidence his affidavit Ex. PA wherein he reiterated almost all the averments as made in the claim

petition. In cross-examination, he admitted that he was asked to perform the duties of loading and

unloading of nitrogen cylinders and that he refused to do the aforesaid work. He denied that he

argued and quarreled with the incharge of the department. He admitted that the respondent

management asked him to join his duties and he joined the same on 31.10.2010. He further

admitted that on 31.10.2010 he left the premises other workers have also left the premises with him

and thereafter he did not turn up. He further admitted that during conciliation proceedings the

respondent management asked him and other co-workers to resume the duties but he refused the

same and that during the pendency of the present case, he was also asked to resume his duties but

he refused to do the same. He admitted that he does not want to work with the company but wants

money from the company. He denied that his services were never terminated by the respondent He

admitted that at present he was working on daily wages.

11. On the other hand, the respondent has examined one Shri Prashant Mathur Accounts

Executive, who tendered his affidavit Ex. RW-1/A, in examination-in-chief wherein he reiterated

almost all the contents of reply filed by the respondent. He also tendered in evidence authority

letter Ex. RW-1/B and special power of attorney Ex. RW-1/C. In cross-examination, he denied that

the services of the petitioner have been terminated by the respondent and that the petitioner was

doing the work of loading and unloading. He further denied that the petitioner is entitled for back-

wages and seniority. He admitted that no notice to call back the petitioner had been issued. He

expressed his ignorance that how many days the petitioner had worked with the company.

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

thereof, it has become clear that the petitioner had left the job at his own and only wants to extract

money from the respondent company as admitted by him in his cross-examination. At this stage, it

would be relevant to reproduce the extract of his cross-examination, which reads as under:

“It is correct that I was asked to perform the duties of loading and unloading of Nitrogen

Cylinders. It is also correct that I refused to do the aforesaid work…………It is correct that

after this incident I left the premises. It is also correct that the respondent management

7573

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

asked me to join the duties and I joined the same on 31.10.2010. It is correct that when I left

the premises, other workers have also left the premises with me………… It is correct that

on 31.10.2010, I along-with other workers, left the company premises and thereafter I did

not turn up to perform my duties. It is correct that during conciliation the respondent

management asked me and other co-workers to resume the duties but I refused the same. It

is correct that during the pendency of the present case, I was also asked to resume my duties

but I refused to do the same. It is correct that I do not want to work with the company but

want the money from the company.”

From the perusal of the cross-examination of the petitioner, it is clear that the when the

petitioner was asked to perform the duties of loading and unloading of nitrogen cylinders, he

refused to do so and after that incident he left the premises. It has also been admitted by him that

the respondent had asked to him to join the duties and he joined the same on 31.10.2010 but on the

same day he along-with other workers had left the premises and thereafter never turned up to

perform his duties. He also admitted that he does not want to do any work with the respondent and

only wants money from the respondent. He further admitted that he is working as daily wage

worker. The respondent in its reply as well as RW-1 in his affidavit Ex. RW-1/A categorically

stated that they had asked the petitioner to resume his duties during conciliation proceedings as

well as during the pendency of the present case but he refused to do the same. Thus, from the

perusal of evidence on record it has become clear that the respondent time and again had offered

the petitioner to resume his duties but he refused to resume the same.

13. Therefore, in view of the entire evidence on record, it has become clear that the

respondent never terminated the services of the petitioner rather he had left the job at his own and

he only wants to extract money from the respondent. Hence, it cannot be said that the termination

of the services of the petitioner is illegal and unjustified. Accordingly, issue no.1 is decided in

favour of the respondent and against the petitioner.

Issue no. 2

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

redundant.

Issue no. 3.

15. In support of this issue, no evidence has been led by the respondent. However, the

petitioner has filed his claim petition pursuant to the reference made by the appropriate government

to this Court for adjudication and I find nothing wrong with this petition which is perfectly

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

respondent.

Issue no. 4

16. The learned counsel for respondent contended that the petition filed by the petitioner is

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

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

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

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

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

Marketing –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”

7574

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

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

respondent.

Issue no. 4

17. During the course of arguments, the learned counsel for the respondent has not pressed

the aforesaid issue, hence, the same is decided in favour of the petitioner and against the

respondent.

Relief.

As a sequel to my above discussion and findings on issues no.1 to 5, 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 5th day of November, 2016.

(SUSHIL KUKREJA),

Presiding Judge,

Industrial Tribunal-cum- Labour Court, Shimla,

Camp at Solan.

__________

IN THE COURT OF SUSHIL KUKREJA, PRESIDING JUDGE, INDUSTRIAL

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

Ref. No. 35 of 2012.

Instituted on.14.6.2012.

Decided on 5.11.2016.

Hari Chand S/o Shri Geeta Ram R/o Village Kundlu, P.O Mashlukhana, Tehsil Kasasuli,

District Solan, HP.

…Petitioner.

Vs.

M/s Total Health Care, Sector-5, Taksal Parwanoo, Tehsil Kasauli, District Solan, HP

through its General Manager.

…Respondent.

Reference under Section 10 of the Industrial Disputes Act, 1947

For petitioner

: Ms. Kumud Thakur, Advocate

vice Shri Ashwani Kondal, Advocate.

For respondent : Shri Alok Bhardwaj, Advocate.

7575

jkti=] fgekpy izns'k] 23 Qjojh] 2017@4 QkYxqu] 1938

AWARD

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

“Whether termination of the services of Shri Hari Chand S/o Shri Geeta Ram R/o Village

Kundlu, P.O Mashlukhana, Tehsil Kasasuli, District Solan, HP by the Occupier/ Factory

Manager M/s Total Health Care Plot no.17 Ambota, Sector-5, Parwanoo, District Solan, HP

w.e.f. 8.1.2010 without complying with the mandatory 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?”

2. In nutshell, the case of the petitioner is that he was appointed as an operator by the

respondent on 6.5.2008 and that in the month of December, 2009, he was directed to do the work of

loading and unloading but when the petitioner objected to the work assigned to him, the respondent

started threatening him to face dire consequences and thereafter on 7.1.2010, his services had been

terminated without assigning any reason and without giving one months' notice as prescribed under

section 25-F of the Industrial Disputes act, 1947 (hereinafter referred to as Act). It is further stated

that the petitioner approached the respondent on number of occasion for his reengagement but he

was not allowed to enter the gate of the factory. On 19.1.2010, the petitioner issued demand notice

claiming reinstatement along-with back-wages and all consequential benefits but when nothing was

received by the petitioner from the Labour Commissioner, he approached the Hon'ble High Court

and pursuant to order dated 4.5.2012 passed in CWP No. 2819/2012, the matter was referred to this

Court. The petitioner was drawing a salary of ` 4250/- per month at the time of his termination and

` 380/- were being contributed towards EPF. Against this back-drop a prayer has been made that

the petitioner be reinstated in service as fitter with seniority and continuity along-with back wages.

3. The respondent contested the claim by filing reply wherein preliminary objections had

been raised qua maintainability of petition, abandonment of job, estoppel and that the petitioner had

not approached the Court with clean hands. On merits, it has been denied that the respondent

threatened the petitioner at any point of time but it is submitted that he refused to do the assigned

work and also argued and quarreled with the incharge of the department and left the premises with

other co-workers. Thereafter, the respondent had written several letters to the petitioner for

resuming duties and after that he came in the factory on 31.10.2010 for work but at 10:00 AM he

left the company premises with other co-workers without any reason and without any cause and

thereafter he never turned up. It is further asserted that the services of the petitioner had never

terminated by the respondent but he abandoned the job at his own. It is denied that the petitioner

approached the respondent for his re-engagement and that since the services of the petitioner have

never been terminated, the respondent has no objection if he resume his duties. The respondent

prayed for the dismissal of the claim petition.

4. By filing rejoinder to the reply, the petitioner reaffirmed the allegations by denying

those of the respondent.

Pleadings of the parties give rise to the following issues which were struck on

9.7.2013.

1. Whether the termination of the services of the petitioner w.e.f. 8.1.2010, without

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

and unjustified as alleged?

… OPP

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

to?

… OPP

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3. Whether this petition is not maintainable as alleged?

… OPR

4. Whether this petition is time barred as alleged?

…OPR

5. Whether the petitioner is estopped from filing this petition by his own acts, conduct

etc.?

… OPR

6. Relief.

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

record of the case carefully.

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

my findings on the aforesaid issues are as under.

Issue no. 1

No.

Issue no. 2

Becomes redundant.

Issue no. 3

No.

Issue no. 5

Not pressed.

Relief.

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

operative part of award.

Reasons for findings

Issue no. 1.